Here is what the Supreme Court of the United States had to say about nepotism in Louisiana in selecting shipping pilots:
The practice of nepotism in appointing public servants has been a subject of controversy in this country throughout our history. Some states have adopted constitutional amendments or statutes to prohibit it. These have reflected state policies to wipe out the practice. But Louisiana and most other states have adopted no such general policy. We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot’s training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those with whom they would serve.
Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 562-563 (U.S. 1947).
What can we learn from the Supreme Court and Louisiana? It is sometimes OK to have nepotism in certain professions. However, simply appointing family members to government posts after being elected is rarely publicly accepted. It is often illegal.
Which brings me to my brother. Check out his Kickstarter video and ask:
Why are lawyers killed off in all the end of the world movies?
Doesn’t that seem odd people would just live like animals instead of trying to rebuild the world? It certainly goes against the message from Akira or Star Trek First Contact.
We may never know the answer unless Gabe meets his Kickstarter fundraising goals. You can help at www.ddmta.com.
Who is legally responsible for the damage caused by the Yeti in Doctor Who Web of Fear?
Professor Travers brought the robotic Yeti from Tibet to London after the events of Doctor WhoThe Abominable Snowmen.
In the 40 years that followed, the good Professor started experimenting on the control spheres that the Great Intelligence used to control the Yeti.
Could Professor Travers be civilly liable for the mayhem that occurred in Web of Fear?
There is no case law directly on point, but there is enough to show a high likelihood the Professor could be liable for some of the damage. The Great Intelligence would be a superseding factor, but the fact remains Professor Travers knew of the dangers, thus subjecting him to liability for the Yeti attacks.
There are no law suits about robot Yeti on a killing spree. However, there is case law about wild animals and robots.
Yes, there was a case about a robot that killed someone.
Wild Animal Liability
Cases across the United States holds that there is absolute liability for those who keep wild animals.
You cannot have a pet wild bear and not be responsible if it injures someone. Burns v. Gleason, 819 F.2d 555, 556-558 (5th Cir. La. 1987) citing Vredenburg v. Behan, 33 La. Ann. 627 (La. 1881).
Conversely, if you have a domesticated animal, such as a bull, the issue is one of strict liability. Rozell v. Louisiana Animal Breeders Cooperative, Inc., 496 So. 2d 275 (La. 1986).
The Restatement (Second) of Torts § 519 and § 520 explains that the doctrine of absolute liability applies to the exercise of ultrahazardous or abnormally dangerous activities.These activities cannot be made safe by the “exercise of utmost care.” Roth v. NorFalco, LLC, 2010 U.S. Dist. LEXIS 42032, 22-23 (M.D. Pa. Apr. 29, 2010).
Restatement § 519 states: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Id.
The test for whether an activity is abnormally dangerous is:
(a) Existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) Likelihood that the harm that results from it will be great;
(c) Inability to eliminate the risk by the exercise of reasonable care;
(d) Extent to which the activity is not a matter of common usage;
(e) Inappropriateness of the activity to the place where it is carried on; and
(f) Extent to which its value to the community is outweighed by its dangerous attributes.
Roth, at *22-23, citing Restatement (Second) of Torts § 520.
Based on the above, Professor Travers would have the following troubling legal problems:
a) There was a known high degree of risk of the Yeti going on a killing spree if controlled by the Great Intelligence;
b) There was a high likelihood the harm would be great, as evident by the events in The Abominable Snowmen;
c) There was a high unlikelihood the Professor could make the Yeti safe or eliminate the chance the bodiless Great Intelligence would be able to take control of the Yeti;
d) Working on robotic Yeti controlled by a bodiless entity called the Great Intelligence is not a matter of common usage;
e) The experiments were conducted in London, not a secure lab outside of a populated area;
f) Could the community benefit from being able to control robot Yeti? Perhaps, but we have done OK without them so far.
Gabe Diani, Josh’s younger brother, enjoys the fact he has a Doctor Who toy that Josh does not have.
Robots Killing People
Just because there is a case where someone sued over a death involving a robot does not mean we have I, Robot or Rise of the Machines.
The case of Payne v. ABB Flexible Automation involved a person who was killed in an industrial accident with robot in a production of aluminum automobile wheels. The Plaintiff argued the robot was defective and unreasonably dangerous.
The Plaintiff lost on a summary judgment motion, because the Plaintiff did not produce evidence that (1) defendant has failed to use the standard of care that a reasonably careful person would use; and that (2) the failure to exercise this care was the proximate cause of injuries suffered by the plaintiff. Payne v. ABB Flexible Automation, 1997 U.S. App. LEXIS 13571, 3-5 (8th Cir. Ark. June 9, 1997).
Could anyone killed by a Yeti demonstrate that Professor Travers did not use a reasonable standard of care and that his failure was the proximate cause of the deaths and injuries in Web of Fear?
I say yes.
Doing anything with the control spheres that did not involve a sledge hammer and melting them would be unreasonable. There is no question that because Professor Travers started experimenting with the Yeti control spheres that he awakened a long dormant threat. As such, he should be subject to liability for attacks caused by the Yeti.
The First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion,” United States Constitution, Amendment I, Clause 1.
What does this mean for a “alien” that historically was thought to be a god who conducts law enforcement activity or national defense? Would offended atheist or religious groups have a cause of action to sue to prohibit the US Government, SHIELD or the Avengers from working with Thor as a First Amendment violation? Would they even have standing to sue the Federal government?
The test whether the Establishment Clause has been violated is whether, “the government practice has the effect, intentionally or unintentionally, of communicating a message of government endorsement or disapproval of religion would there be a violation of the Establishment Clause.” Rosa-Ruiz v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905, at *10 (D.P.R. Sept. 20, 2007).
The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.
Thor working with SHIELD or the Avengers (assuming they are state sponsored) is nothing like a courthouse with the 10 Commandments or Christmas decorations in a public park. You actually have a “person” with extraordinary powers. Would such partnerships for law enforcement or national defense amount to a state-endorsement of religion that violates the “Lemon Test”?
As to the first element, Thor fighting invading alien armies has the secular purpose of stopping a US city from being destroyed and the enslavement of the human race. The purpose of Thor’s actions is clearly defensive in nature for the protection of all of mankind, thus promoting a secular purpose.
Thor’s actions of protecting Midgard do not have a primary purpose of advancing or inhibiting religion. Thor demands no offerings from the US government, nor are temples being built for him. All US citizens still enjoy the freedom of religion. This is purely a strategic defensive relationship to ensure the safety of all of the Nine Worlds.
As to the final element, SHIELD, the Avengers or local police working with Thor do not pose an excessive entanglement with religion. There are no worship services taking place or the Secretary of Defense making sacrifices to appease the God of Thunder. If anything, this is a diplomatic relationship to combat mutual threats.
The US Government should be able to conduct law enforcement activities or national defense with Thor without violating the First Amendment. Any such partnerships are within the police powers of the state and do not endorse the view that Thor is a god, but a strategic ally in times of crisis.
“FZZT” was one of the best Agents of SHIELD yet. The big legal issue presented was the legality of quarantining someone with an infectious disease that could cause a pandemic.
The Quarantine Zone
Agent Coulson had firemen and Simmons each put into quarantine over the course of the episode.
Case law going back over 100 years validates the practice of doing so to avoid a pandemic.
As United States Supreme Court Justice White said in 1902:
That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.
Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 387-388 (U.S. 1902).
However, there are limits.
One quarantine in San Francisco that was supposed to stop the spread of the bubonic plague covered 12 city blocks where 10,000 people lived. The area happened to be populated by Chinese-Americans. Jew Ho v. Williamson, 103 F. 10, 21-24 (C.C.D. Cal. 1900).
Circuit Judge William Morrow struck down the quarantine as “unreasonable, unjust, and oppressive” and in violation of the 14th Amendment to the United States Constitution. Jew Ho, at *26.
It must necessarily follow that, where so many have been quarantined, the danger of the spread of the disease would not diminish. The purpose of quarantine and health laws and regulations with respect to contagious and infections diseases is directed primarily to preventing the spread of such diseases among the inhabitants of localities. In this respect these laws and regulations come under the police power of the state, and may be enforced by quarantine and health officers, in the exercise of a large discretion, as circumstances may require. The more densely populated the community, the greater danger there is that the disease will spread, and hence the necessity for effectual methods of protection.
///
It must necessarily follow that, if a large section or a large territory is quarantined, intercommunication of the people within that territory will rather tend to spread the disease than to restrict it. If you place 10,000 persons in one territory, and confine them there, as they have been in prisons and other places, the spread of disease, of course, becomes increased, and the danger of such spread of disease is increased, sometimes in an alarming degree, because it is the constant communication of people that are so restrained or imprisoned that causes the spread of the disease.
///
The next most dangerous thing to do was to quarantine any considerable portion of the city, and not restrict intercommunication within the quarantined district.
Jew Ho, at *27, 35.
Jew Ho v. Williamson is a very good civil rights case that covers what is, and what is not, a proper exercise of police power in quarantining people to stop the spread of disease.
Agent Coulson’s actions in quarantining the firemen and Simmons were proper exercises of such police power.
The firemen total number of firemen quarantined was a dozen at most. This was done for not just their safety in being able to develop a cure for anyone infected, but to keep the disease from becoming a pandemic. This would meet the well-established reasons to quarantine a group of people.
Agent Coulson sealing Simmons in the science lab of the cargo bay would also have been a valid exercise of police power in quarantining someone. It was not done with “evil intent,” but because she was infected with an alien virus.
Agents of SHIELD has been a fun ride so far and continues to touch on solid legal issues. Let’s see what happens with the Thor 2 cross-over.
I love Doctor Who. A large number of people have loved the show for 50 years. Just look how Western Civilization on Twitter slowed to a crawl for the announcement of Peter Capaldi as the next Doctor.
There is one thing people have forgotten about the show: An Unearthly Child begins with three separate legal issues.
Get Off My Lawn!
The first legal issue is Ian and Barbara forced their way onto the TARDIS.
They entered uninvited in a borderline home invasion.
Trespassing is the wrongful entry on the property of another person. Westlaw Black’s 9th Law Dictionary App.
Ian and Barbara did not have permission to enter the TARDIS, making them trespassers.
As such, the Doctor owed them no duty of care, but the Doctor’s following actions would not be a valid response to trespassing.
How to End Up on a Milk Carton
The second legal issue is the Doctor kidnapping Ian and Barbara back to the Stone Age.
Kidnapping at common law was “the crime of forcibly abducting a person from his or her own country and sending the person to another.” Westlaw Black’s 9th Law Dictionary App. Effectively, the crime was false imprisonment and taking the victim to another country. Id.
This also gives new meaning to the phrase “alien abduction.”
The Doctor started the TARDIS with Ian and Barbara locked onboard with the intent of taking them out of London. Going back to the Stone Age would certainly qualify as taking Ian and Barbara out of Great Britain.
No One Should Have a Charles Dickens Childhood
Now for the third legal issue: Ian and Barbara arguably stalked Susan.
Stalking is the following of another by stealth. Westlaw Black’s 9th Law Dictionary App.
Ian and Barbara waited for Susan at her known address, entered the junkyard and hid behind some objects when the Doctor entered the yard. These actions meet the elements of stalking.
However, since Ian and Barbara were teachers who were looking out for the well-being of their student, they would have a strong defense. They were concerned she was living in a junkyard. If only Harry Potter had teachers like that for the first decade of his life, he would not have been in a cardboard under the stairs with emotionally abusive guardians.
The Day of the Doctor
Doctor Who is an extremely beloved show. I am counting down to The Day of the Doctor. However, it is rather unearthly that the first episode touched on stalking a 15 year old girl, trespassing and kidnapping.
Doctor Who The Web of Fear is one of two recently long lost Doctor Who stories featuring the Second Doctor. All but one episode was recovered from the ashes of history.
The story is noteworthy because it was the introduction of Colonel (but future Brigadier) Alistair Gordon Lethbridge-Stewart.
The villain was the Great Intelligence, who used robotic Yeti that Professor Travers brought back to England from Tibet in the 1930s in the The Abominable Snowmen. This is the second appearance of the Great Intelligence, who would reappear to battle the Eleventh Doctor in the Snowmen,TheBells of Saint Johnand The Name of the Doctor.
Most of the story took place in the London Underground. The British Army (not UNIT) fought Yeti and a big white foaming lethal fungus spreading beneath the city controlled by the Great Intelligence.
One “soldier,” purely in the academic sense, was “Driver Evans.” Evans had the unique ability to stay alive, usually by avoiding anything dangerous. This included challenging Colonel Lethbridge-Stewart’s orders with personally less hazardous suggestions. He let others volunteer for dangerous assignments so he would not be in harm’s way. Evans even stood on a chair as a control sphere rolled by so he could have a higher “vantage point.” While Lethbridge-Stewart and the other soldiers were off fighting Yeti with small-arms, grenades and bazookas, Evans was safe and sound.
Evans conduct bordered on desertion and outright cowardice. How would a soldier be court-martialed for such conduct?
It is long stand policy in the US military’s Articles of War, with its British originals, that desertion and cowardice are serious offenses. Swaim v. United States, 28 Ct. Cl. 173, 233 (Ct. Cl. 1893). Moreover, Article of War 61 prescribes that “any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service,” and Article 100, that “when an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name and place of birth of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides.” In re Carter, 97 F. 496, at *498 (C.C.D.N.Y. 1899) and Carter v. McClaughry, 183 U.S. 365, 395 (U.S. 1902)
Getting thrown out of the military for cowardice in the late 19th and early 20th Centuries included full on public-coward-shaming.
Circuit Judge Field summed up the 19th Century view as “desertion is the highest, and with cowardice, the basest of offenses which can be committed by men in the naval service…” Montgomery v. Bevans, 17 F. Cas. 628, 634 (C.C.D. Cal. 1871). For the sake of argument, Judge Field would likely extend that belief to the Army.
So, what do we do about Driver Evans? British Soldiers and members of UNIT seemed to have about as likely a chance to survive on Doctor Who as a Red Shirt on Star Trek.
The fact all the other soldiers get killed EXPECT Evans and the Colonel Lethbridge-Stewart highlighted this point.
Still, that does not excuse avoiding risk or being willing to sell-out others for his own safety.
Even the Doctor jumped on the back of a Yeti in a failed attempt to save a soldier.
Men in bow ties are willing to take such heroic actions.
The fact that Evans’ conduct came close to desertion while discussing escaping with Jamie and leaving the others behind, to avoiding hazardous missions, to an outright willingness to turn the Doctor over to the Great Intelligence, demonstrated cowardice numerous times. Throwing him out of the Army would be a good idea after a court-martial. Those on the front lines need to be willing to actually do their job in defending their country, not seeking self-preservation at the cost of others.
