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My legally geeky wishes for 2013

2013We’re already over a week into the new year and I’m still working on my new year’s resolutions.  While I work on those, however, I thought I’d share with you my wishlist of things I’d like to see in the 2013:

1.  A good director signing on for Star Wars VII (a few top choices have already turned down the opportunity).  I’m trying to stay optimistic – I really am – but I’m beginning to worry that this episode won’t be any better than the last three.  If that happens, they (they being George Lucas and Disney) may officially kill my multi-decade love affair with Star Wars.

2.  And while we’re discussing movies, can I please beg Joss Whedon to give Wonder Woman another chance?  I know he’s very busy, but he’s also one of the most powerful people in Hollywood now, so I’m asking him to use his power to bring back his Wonder Woman movie!

3.  On the legal side, I’d love to see some computer-assisted-review programs (a.k.a. predictive coding) that could review for privilege and confidentiality.  I know it’s unlikely, but it would be so nice…

4.  Meanwhile, on the technical side, why do all of the apps my kids want me to put on my smart phone have to access my location, my messages, phone numbers, etc?  Can they please stop making apps that want all of my private information?

CatWall5.  Back to Hollywood, I wish somebody would try to make a movie or mini-series out of one of Robert Heinlein’s best novels, like The Moon is a Harsh Mistress or The Cat Who Walks Through Walls.  Starship Troopers and The Puppet Masters should not be the only Heinlein works given movie star treatment.

6.  I want Xena again.  Seeing Lucy Lawless play Ron’s love interest on Parks & Recreation is nice, but it really makes me miss Xena.  Lucy still looks great and I think a revived Xena show, maybe on HBO or Showtime so they can be edgier, would be amazing.

7.  I saw this HipKey debut at CES this week.  The idea – that your iPhone will help you keep track of your keys (or kids) – is awesome.  But I need a system that works with Droids.  It also needs to prevent me from locking my keys in the car.  And, if I’m really wishing, I need one that will also help me keep track of the phone itself.  Is there an app for somebody who misplaces everything?

8.  Community better come back and stay back!  I’m worried about how it will hold up, post Dan Harmon, but I’m sure it will still be better than most other things out there and I really miss it!

TheLegalGeeks-Small9.  Finally, I’d really love to see somebody wearing a Legal Geeks shirt.  Maybe it’s narcissistic, but it would be beyond exciting to see our logo worn by some geek somewhere!

Troubling Tribbles: The Ultimate Invasive Species

Just because something is cute and snugly does not mean it isn’t dangerous.

Nothing is better evidence of this then perhaps the most dangerous [fictional] invasive species:

A Tribble from Star Trek.

Tribbles are a purring ball of fur that snuggle and make people feel good, including Vulcans. The creatures were introduced in the Star Trek TOS episode Trouble with Tribbles; returned in the Animated Series episode More Tribbles, More Troubles; had cameos in Star Trek III: The Search for Spock and Star Trek Generations; and appeared again in the Star Trek: Deep Space 9 episode Trials and Tribble-ations.

An invasive species is an animal which is introduced into a completely new environment to the detriment of indigenous species. Examples include Zebra Muscles in the Great Lakes, Asian Carp, or Pythons in Florida.

The US Congress described the dangers caused by invasive species as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Tribbles lack the gross factor of Zebra Muscles or the terror of a 17 foot snake surprising a birthday party in Florida. While it is extremely unlikely Tribbles will play any role in Star Trek Into Darkness, Tribbles would pose a greater environmental threat to an entire planet than any of the current invasive species on Earth.

TribbleMath_5838Tribbles are born pregnant and give birth when fed. While not as messy as getting a Gremlin wet, the mere introduction of a Tribble in an ecosystem would cause an immediate threat to the food supply and cause a Tribble population explosion. Even if hawks, alligators, lions, sharks and every predator on Earth developed a taste for Tribble, they would not be able to keep up with Tribble reproduction.

Tribble_CutWith that said, Tribbles might be the answer to the problem of world hunger; however, selling humanity on eating cute purring animals would be difficult.

There would also be challenges in mobilizing Tribble slaughterhouses and the industrial capacity to keep up with the rate of reproduction.

The United States Government and States have fought invasive species a number of ways. One is prohibiting conduct that introduces the animals into the ecosystem, such as the discharge of untreated water in the ballast tanks of foreign cargo ships in US waters. Other “hands-on” remedies include adding rotenone (a fish kill agent) to waterways in fighting Asain carp.

KlingonBattleCruiserThe Klingons in Star Trek The Animated Series created a Tribble predator called a Glommer to hunt and eat Tribbles.

Klingons creating a creature to hunt an invasive species carried a fair amount of risk, because they were adding another animal to the environment.

While the Glommer could have been engineered to only eat Tribbles and die when the food supply was exhausted, such a plan is not comparable to adding rotenone to a lake to kill Asian carp. Simply put, there is risk in adding another animal to the mix.

However, the Klingons did send a fleet to destroy the Tribble homeworld (Referenced in Trials and Tribble-ations). This plan for Tribble-cide was more in line with a traditional “fish kill” to eliminate an invasive species…if the invasive species were as cute as baby seals.

Tribbles_0390The Federation would have several options to control the introduction of Tribbles to Earth.

One option is to outright prohibit ships bringing Tribbles to Earth, much like the United States Congress (and the Coast Guard) prohibiting ballast water from being discharged in US waters from international shipping.

This plan would require Star Fleet’s equivalent of the Coast Guard conducting vessel inspections of star ships in orbit prior to any cargo being sent to the service. There also might be a technical solution of programming transporters to not beam Tribbles to Earth.

Another option is to classify Tribbles as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

The Federation most likely enacted laws prohibiting the introduction of Tribbles to Earth, unless they had been “neutered.” The evidence for this “middle-ground” regulation were 1) the Tribble cameo in Star Trek III on Earth in the bar where McCoy was attempting to book a flight to Genesis and 2) a child is seen with a Tribble when the Enterprise-D is crashing in Star Trek Generations. There was no evidence later in Star Trek III of a Tribble population explosion and remediation efforts or the Enterprise-D survivors cooking Tribbles for food while awaiting rescue.

Further evidence for the “altered” Tribbles theory comes from More Tribbles, More Troubles. Cyrano Jones poorly attempted to genetically alter Tribbles to not reproduce, which ultimately Dr. McCoy corrected to create “safe” Tribbles that reproduced at a much slower rate. While this logic is based on the lack of a Tribble population explosion, it is a logical deduction given the fact a Tribble was present on Earth without incident in Star Trek III: The Search for Spock or Star Trek Generations.


Django Actually – Contract Questions in Django Unchained and Love Actually

PresentsWhat do Django Unchained and Love Actually have in common?  Not much, except a tie to Christmas and contract questions.  Love Actually is my favorite Christmas-themed movie (thanks largely to Liam Neeson, Colin Firth, and Hugh Grant).  Django Unchained, on the other hand, is not a feel-good Christmas movie at all but was released on Christmas day this year (and is a good movie dealing with a very difficult subject).

In addition to their connections to Christmas, both Django Unchained and Love Actually also raise contract questions.  In Django Unchained, Dr. King Schulz tells Django that he’ll give him his freedom and $75 if Django helps Dr. King find and capture (dead or alive) three wanted men.  In Love Actually, rock star Billy Mack (the great Bill Nighy) promises to perform naked on Christmas Eve if his Christmas pop song, Christmas is All Around, is the number one Christmas song that year.  Are either of these promises binding agreements?

To have an enforceable contract, there are a few basic elements that must be met: (1) an offer; (2) acceptance of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding.  See Tyco Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750, 772 (Tex.App.–Houston [1 Dist.] 2012).  Contracts, with some limitations, may be either verbal or written.

ChainLinksIn Django Unchained, Dr. King was clearly making an offer that Django accepted.  There was no misunderstanding over the terms of the agreement and both parties agreed to and wanted the contract to be binding.  So it’s enforceable, right?  Maybe.  One of the many, many injustices wrapped up in slavery – and the U.S. legal systems’s role in perpetuating that horrible system – was that courts refused to enforce contracts to which a slave was a party.  See Sanders v. Devereux, 1860 WL 5729, at *3 (Tex. 1860) (stating that, in general, a slave can neither sue nor be sued, nor can he make any contract which either a court of law or equity can enforce).

The Texas Supreme Court provided one exception to that rule, however, stating a slave can maintain a legal action to obtain his freedom, although he must do so through a guardian.  Id.  So there is a slight chance that Django would have been able to make Dr. King free him once he helped Dr. King find the three wanted men, although he would have had to find somebody to bring the lawsuit on his behalf.  Fortunately, Dr. King followed through on his promise, even though he probably didn’t have to.

Rock StarOn a much, much lighter note, in Love Actually, Billy Mack also makes a promise to the people of Great Britain – he’ll get naked if they make his song number one.  The contract at issue here (and I’m doing all of this assuming US law would apply as I’m no expert on English law) is actually a “unilateral contract.”  This type of contract consists of a promise on the part of the offeror (Billy Mack) and performance of the requisite terms (making his song No. 1) by the offeree (the music-buying audience).  See Tacoma Auto Mall, Inc. v. Nissan North America, Inc., 169 Wash.App. 111, 129  (Wash.App. Div. 2, 2012).

Unlike a regular contract, which is usually executed before either party performs, a unilateral contract is only executed if the offeree performs (e.g., makes Billy’s song No. 1).  Once the offeree performs, then the offeror is bound by the terms of the contract.  So once his song became No. 1, Billy Mack was contractually bound to follow through on his promise.  (Another example of a unilateral contract is the wanted dead or alive reward posters that featured so prominently in Django Unchained.  The courts offer to pay for the delivery of the bad guy and once the bounty hunter shoots the bad guy in reliance on that offer, the courts are obligated to pay up.)

Of course, anyone who tried to sue Billy Mack if he didn’t get naked would have to show that she purchased his song in reliance on his promise.  There’s also the possibility that a court may refuse to enforce the contract – involving public nudity – because it’s contrary to public policy.  See Liberty Mut. Fire. Ins. Co. v. Mandiie, 192 Ariz. 216, 220 (App. 1997) (recognizing that contracts contrary to public policy are void).

Written ContractSo both movies’ contractual plot lines are questionable, not that movies ever worry too much about getting the law right.  Other than that, the two movies have nothing in common, although I recommend watching both of them this holiday season.


An Attorney’s Christmas Special: Legal Issues in Christmas Movies

Young woman in santa hatThere is no shortage of Christmas movies that have an overall theme of compassion, giving and showing good will to others.

Many of these films set a high bar for “feel good” family entertainment.

There is also no shortage of lawyers who watch Christmas movies.

And where lawyers are watching movies, they are considering different legal issues.

Let’s review some of the big legal issues in some of the holiday classics. 

It’s a Wonderful Life

There is no question It’s a Wonderful Life is one of the best Christmas movies, if not Jimmy Stewart’s finest film.

Here are some of the issues that cause lawyers pause:

Zu Zu’s statement that “teacher says, every time a bell ring, an angel gets his wings” is an alert that the “separation of church and state” may have been violated in a public school.

Mr. Gower’s near miss with manslaughter due to poisoned medication and child abuse by hitting George Bailey.

Young George Bailey would have committed murder if he knowingly delivered poisoned medicine to a sick child.

Just what was Violet’s job?

Mr. Potter kept the $8,000 and avoided getting arrested.

A Christmas Story

There is justified concern a child could hurt themselves with a BB Gun. The safe alternative gift recommended by different characters in A Christmas Story is a football.

Football-ChristmasGiftHowever, footballs might be just as dangerous as a Red Rider BB Gun, given the number of concussions professional players have suffered. While there is no totally safe sport, a baseball might have less risk of physical injury, but more risk for broken windows.


ElfShoesElf raises many legal issues.

Consider the following:

How was Buddy adopted by Papa Elf?

Was there a claymation judge at the North Pole?

Did the orphanage ever file a missing person report for a baby disappearing ?

How was Buddy legally re-integrated into society after spending 30 years at the North Pole? He should have had a birth certificate, but how did he get a Social Security Number after age 30 without any red flags going off?

The Polar Express

Did any of the parents in The Polar Express teach their kids stranger danger?

How about not getting in a vehicle with a stranger?

This is a disturbing part of an otherwise very sweet story of believing and helping others.

Toy TrainScrooged

How did the network lawyers handle Elliott Loudermilk’s siege of the control room? Did Christmas cheer keep everyone from filing charges? How about Brice Cummings, who is tied up by Loudermilk and endures unwanted physical advances from the Censor?

Miracle on 34th Street

The single best Christmas courtroom drama is the 1947 Miracle on 34th Street. Moreover, the hero is a lawyer defending Santa Claus, at great personal risk to his own career. The attorney’s duty of loyalty to his client causes him to quit his law firm and consider opening his own practice in order to protect Kris Kringle from being put in an insane asylum.

LawyerSantaHatThe film also touches on the difficultly of being the District Attorney and Judge in a high profile case. The Judge quickly learns his own grandchildren and wife are ashamed of him for ordering a lunacy hearing to put Santa Claus in an insane asylum. The DA endures judgmental glares from his wife, including the wife permitting the DA’s son to testify on the child’s belief in Santa Claus, to the harm of his father’s case.

CoalforYouNothing screams “You’re sleeping on the sofa” on Christmas Eve then committing Santa Claus to an insane asylum. Simply put, there is no judicial relief for any attorney (or judge) who ends up on his wife’s Naughty List for not spreading Christmas cheer.

Where Are You Christmas?

How the Grinch Stole Christmas raises many issues of burglary and identity theft. Additionally, why didn’t the Grinch wear pants?

More importantly, the movie also ends with a touching dedication to Ron Howard’s mother, “who loved Christmas most of all.”

There are mothers across the planet who put their hearts into creating a wonderful Christmas experience for their children. Ron Howard’s tribute spoke for many people and is a very fitting way to end a Christmas movie.


Santa Claus & The Torts of Christmas

Santa-NiceListWe all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

He know if you have been bad or good, so be good for goodness sake…

Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?

What other liability is Father Christmas personally incurring as he decides who is naughty or nice?

For example, how does Santa know if you have been bad or good?

Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?

Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?

Let’s review the possible Torts and Crimes committed annually by Santa Claus.

Invasion of Privacy

Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:

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.

Santa Looking CloserSanta is watching us all the time, even when we are asleep.

Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).

The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:

John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:

1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;
2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;
3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;
4. That John Doe was harmed; and
5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.

In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:

(a) The identity of Santa Claus;
(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and
(c) The means by which the intrusion occurred.

In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:

(a) The extent of the intrusion;
(b) Santa Claus’s motives and goals; and
(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?

Sleeping-SantaWhat are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.

Negligent Infliction of Emotional Distress

Happy excited Christmas business woman isolatedThere is a good argument that Santa Claus watching John Doe can cause negligent infliction of emotional distress.

Generally, to prove this tort, a party must establish the following:

(1) Defendant’s negligence caused Plaintiff’s emotional distress,

(2) Resulting in physical harm manifested by objective symptomology, and

(3) A reasonable person would have suffered emotional distress under the circumstances.

Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).

John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.

Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.

Trespass of the Bells

Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.

Christmas Wish List with Cookies and MilkIf Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.

The Naughty or Nice List

NaughtyNiceListThe public has a right to be concerned with someone who can watch the world sleep.

However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.


‘Tis the Season: My favorite sci book for this time of year.

HolidayI was thinking about the next post I’m doing, discussing my favorite holiday movie (along with a movie that is not holiday-like but is coming out on Christmas Day), and it got me thinking about holiday sci-fi books.  I could only think of two sci fi books that deal with Christmas, although Google revealed this list of holiday-themed sci fi books (which fails to mention my favorite).

The first story I thought of is an Arthur C. Clarke one I read in high school – The Star.  The ending is cool but otherwise I wasn’t crazy about it.  My second Christmas sci fi book, however, is one of my favorite books, written by Terry Prachett.  Pratchett is my favorite living science fiction author (an easy decision for me to make because Asimov, Heinlein, and Herbert are all dead) and I’ve been looking for an excuse to write about him.

I first fell in love with Pratchett when I read his short story, “Hollywood Chickens.”  It’s funny overall but I knew I found a keeper when a reference was made to a Star Trek episode that was found on the side of an LA freeway.  The next line described the episode as “the one where Captain Kirk falls in love with the girl.”  Maybe I’m a huge dork, but I thought that line was hysterical (and if you don’t get it, I’m not going to explain it to you).

Anyway, Pratchett’s Christmas-themed book is Hogfather.  Hogfather is the twentieth of Pratchett’s books to be set on Discworld, a flat world balanced on the back of four elephants who ride on the back of a giant turtle.  Discworld is similar to our world, although there St. Nick is replaced by Hogfather, who delivers presents on December 32.

HogfatherThe brilliance of Hogfather the book is that the man himself has been “killed,” so Death has to take over delivering presents.   Meanwhile, Death’s granddaughter, Susan, has to track down and rescue Hogfather.  While there are many movies (and possibly other books) that base a plot on someone stepping in for Santa Claus, no other character is as funny a replacement as Death.  And Death, who appears in several of the Discworld books, is always likable and relatable (a testament to Pratchett’s brilliance).

Pratchett’s skill lies both in taking humorous jabs at our world and in creating lovable, unforgettable characters.  In addition to Death, Rincewind the incompetent wizard is a funny, fantastic character who shows up in many of the Discworld books.  The leading law firm in Discworld, while not central to any of the stories, is still worth a mention because the three founders are a zombie and two vampires (how many law firms would secretly love such monsters as their lawyers?).  Moist von Lipwig is a con-man and the Postmaster General who takes Ankh-Morpork off the gold standard in Making Money (a storyline my brother, the law and economics guru, would appreciate).  Granny Weatherwax is also great, as are the Wee Free Men.

I could go on all day about the greatness that is Discworld and the characters Pratchett has created, but for now, let me just say…If you’re looking for a good holiday read, read Hogfather.  It’s holiday magic!

A Hobbit's Overview of Property Rights

Cue the sweeping music and prepare yourselves for an unexpected journey into property rights.

The Hobbit and The Lord of the Rings are not just epic stories, but ones of basic property ownership.

My first law school reading assignment was for Property and understanding the concept of “a bundle of sticks.” This was not an epic journey across Middle-Earth, but over centuries of how human beings “own” property.

And what is the One Ring? It is a thing. And a thing is something that is owned.

So, who owns the One Ring?

A Timeline for My Precious

Sauron created the One Ring; defeated by Isildur;

Isildur, killed at Battle of the Gladden Fields. The One Ring is lost in the Gladden river for over 2,500 years;

Déagol discovered The One Ring on a fishing trip;

Sméagol murdered Déagol and took the Ring for himself. Sméagol becomes Gollum;

After 500 years in the Misty Mountains, the Ring falls off of Gollum’s finger after killing a goblin;

Ring found by Bilbo Baggins; Subsequently won in a game of riddles from Gollum;

Bilbo gives the One Ring to Frodo Baggins;

Samwise Gamgee takes possession of the One Ring after Frodo is thought dead; returns Ring to Frodo after rescue;

Gollum retakes Ring by biting off Frodo’s ring finger.

(Timeline from Timeline of Arda and The One Ring; it is worth noting that both Gandalf and Tom Bombadil each briefly held the One Ring)

“Short cuts make for long delays.”

As a preliminary matter, let’s review some basics of Property law.

Black’s Law Dictionary iPad App defines “property” as follows:

1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership <the institution of private property is protected from undue governmental interference>. — Also termed bundle of rights. 2. Any external thing over which the rights of possession, use, and enjoyment are exercised

Black’s Law Dictionary iPad App defines “lost property” as “Property that the owner no longer possesses because of accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent search.”

Generally speaking, and this will vary state to state, someone who finds mislaid property has no right to it; a finder is entitled to possession of lost property against everyone except the true owner; and a finder is entitled to keep abandoned property.  Wikipedia, citing Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409 (1985).

“The road goes ever on and on”

Sauron was unquestioningly the original owner of the One Ring as its creator. This gave him the right to possess, use and enjoy The One Ring. However, during the final battle with the Elves and Man, Isildur cuts off Sauron’s finger, thus destroying Sauron’s physical form.

Isildur became the rightful owner of the One Ring after Sauron’s defeat as a “spoils of war,” which is property taken from the enemy in wartime operations. (See, Black’s Law Dictionary).

The One Ring is lost for over 2,500 years after Isildur’s death. Given that amount of time and no rightful heirs looking for the One Ring, Déagol became the owner of the One Ring once he found it in on his ill-fated fishing trip as a treasure trove or abandoned property.

Sméagol’s murder of Déagol did not make Sméagol the owner of the One Ring. One cannot benefit lawfully from committing a crime. While Sméagol was in possession of the One Ring for 500 years, he was never the lawful owner due to the murder.

Even if one can argue there was an undue influence over Sméagol from the evilness of the One Ring, Sméagol still killed Déagol to get the Ring. While the “control” of the Ring might not make Sméagol guilty of murder based on an insanity defense similar to the Twinkies Defense, it does not make him innocent of killing Déagol. A Court would be hard pressed to somehow have Sméagol inherit the Ring from Déagol based on the influence of the One Ring to drive Sméagol to kill, even if it was mutual combat from both Hobbits being corrupted by the One Ring.

Things get tricky with Bilbo acquiring the Ring. Technically, the One Ring was no longer in Gollum’s possession, as it had slide off Gollum’s finger. This raises issues of whether the Ring was lost or abandoned. The answer may turn on how much time had passed since the Ring had fallen off of Gollum’s finger on whether it was “lost” or “abandoned.”

Arguably, Bilbo found “lost” or abandoned property that was never lawfully Gollum’s. However, if the Ring was not considered abandoned, Bilbo’s games of riddles with Gollum would show a lawful transference of ownership, if Gollum had perfected title somehow (Gollum did have the Ring for 500 years without being challenged).

This theory is problematic, because it would require 1) murder being cured for ownership; and 2) Bilbo found the Ring before encountering Gollum while navigating his way through a pitch black tunnel. One could argue the Ring appeared abandoned to Bilbo, opposed to simply misplaced. However, if Bilbo was on notice the Ring belonged to Gollum, Bilbo could have problems with unlawfully taking the Ring. With that said, since Gollum planned to kill and eat Bilbo, Bilbo arguably took the Ring out of self-defense.

Bilbo made a direct gift of the Ring to Frodo. As such, the Ring properly belonged to Frodo as a gift and in his possession for 17 years [in the book; the filmed moved a lot faster]. However, after Gandalf’s return and the Ring is placed in fire, the text on the Ring was arguably a 3,000 year old mark of appropriation by Sauron.

A mark of appropriation is a way of showing ownership over an item with an identifying marking.

In the classic case of Ghen v Rich, a whaler was held to be the owner of a finback whale he harpooned because of the distinguishing markings of the bomb-lance. In effect, Ghen marked the whale as his own.

Arguably, Sauron had a mark of appropriation on the Ring showing he was the owner. Additionally, if Middle-Earth, and the Shire specifically, had laws like California that prohibit the appropriation of lost property when there are clues to the proper owner (CA Penal Code 485), Frodo would have to make reasonable efforts to notify Sauron that he (Frodo) had the Ring.

However, the mark of appropriation arguably would not be a valid claim of ownership due to the fact 3,000 years had past and that Sauron lost the One Ring when he was defeated by Isildur.

Assuming that Frodo was the proper owner, Sam briefly was the bailee of the Ring when Frodo was injured by the spider Shelob. While Sam first thought Frodo was killed (and thus took the Ring to keep it out of the enemy’s hands), Sam’s duty was to keep the Ring safe until he could return the Ring to Frodo as a bailee.

In the final battle at Mount Doom, Gollum once again steals the Ring by biting it off Frodo’s ring finger (raising many issues of intentional torts and criminal liability). However, this criminal possession is short lived as the Ring and Gollum fall into lava.

There And Back Again

Property rights give the owner the right to enjoy property and exclude others from using it. J.R.R. Tolkien may not have intended for his epic story of good vs evil to highlight issues of property rights, but Hobbits are not the only ones who take unexpected journeys.

AbbyShot's Eleventh Doctor's Purple Coat