Countdown to Darkness, the official Star Trek comic prequel to Star Trek Into Darkness, has come out with its first two issues.
The story focuses on the U.S.S. Enterprise visiting a planet that was supposed to be the technological equivalent of ancient Rome and somehow had energy weapons.
The key “legal villain” in the story is the former captain of the Enterprise, Robert April. Well, and barbaric aliens called the Shadows. And maybe a Bajoran woman named Mudd.
Only if you are a hard core geek do you know of Commodore Robert April from the animated series where the Enterprise crew was aging backyards. However, in the “new” timeline, April was not captain of the Enterprise that was also captained by Christopher Pike and then James T. Kirk, but a prior Enterprise (based on the Captain’s Chair, possibly the 1701 from The Original Series that was decommissioned for the new 1701). He never made the rank Commodore and spent 20 years going rogue.
How is Robert April the “villain”? He deserted his Enterprise, thanks to a cover-up by his First Officer, to stop the minority of a pre-warp society from being butchered by the majority known as Shadows.
This is also a crime, because April willfully violated the Prime Directive. For those who do not know the actual text of the Prime Directive, it states the following:
As the right of each sentient species to live in accordance with its normal cultural evolution is considered sacred, no Star Fleet personnel may interfere with the normal and healthy development of alien life and culture. Such interference includes introducing superior knowledge, strength, or technology to a world whose society is incapable of handling such advantages wisely. Star Fleet personnel may not violate this Prime Directive, even to save their lives and/or their ship, unless they are acting to right an earlier violation or an accidental contamination of said culture. This directive takes precedence over any and all other considerations, and carries with it the highest moral obligation.
How did April violate the Prime Directive? He armed the inhabitants of Phaedus IV with Federation weapons in their civil war and became the “leader” in the minority’s fight against the Shadows.
It is highly unlikely a JAG officer will make an appearance in the story, but it is obvious that Captain April can be charged, and convicted, of a violation of the Prime Directive. His former First Officer also could be charged with a conspiracy to violate the Prime Directive and any subsequent crime by April in furtherance of the conspiracy. However, the former XO might not be responsible for additional arms smuggling, as that arguably is outside the scope of the original conspiracy for April to leave the Enterprise to help fight against the Shadows. It would all depend whether the Executive Officer contacted the arms dealers.
Of course, this is a Star Trek story. Let’s see how the story unfolds Into Darkness…
Because few Americans are greater symbols of resolution, loyalty to country and the courage to overcome defeat.
Moreover, John Quincy Adams is a reminder of how one lawyer can make a difference in the United States.
JQA suffered a massive stroke on the Floor of the House of Representatives on February 21, 1848.
He served in the House from 1830 to his death on February 23, 1848. He is the only American President to be elected and serve in Congress after his Presidency. [While President Andrew John was elected to the Senate by the Redeemer Government in Tennessee, he died before taking the oath of office.] During this time, President John Quincy Adams earned the nickname Old Man Eloquent.
Never before in our country’s history had there been a larger funeral for a former President of the United States. Statesmen and a grieving procession several miles long accompanied Adams’ body back to Quincy, Massachusetts. In true government fashion, Adams’ coffin was several inches too wide for the crypt.
Only one other state funeral would have a larger outpouring of national grief in the 19th Century. It was for an attorney from Illinois who served one term in Congress. His name was Lincoln.
JQA grew up at the founding of the United States, thanks in large part to his father’s determination to see an independent United States of America. A boy who became an ambassador (and the only family where the grandfather, father and grandson each served as Ambassador to England); the US Senator who lost his office because of his support for the Embargo Act of 1807; the statesman who helped negotiate the end of the War of 1812; the Secretary of State who defined 19th Century foreign policy with the Monroe Doctrine; and a man elected President of the United States by the House after a disputed election with four candidates.
President John Quincy Adams was the first “modern” President who did not wear a wig, worn clothes modern for the time and had what would be considered a progressive administration. He wanted roads, a Naval Academy and what would be called the Smithsonian. He also wrote in his diary daily, even go so far to teach himself to write left-handed when his right hand became tired. He also swam nude in the Potomac to exercise…which would not go over well today.
Unfortunately, his Presidency was a total failure. Congress dug in and opposed him on every issue, biding their time for Andrew Jackson.
Adams lost the election of 1828. Many historians joke it was probably more honorable to have lost than won that race. During the campaign, Jackson’s people accused Adams as having supplied the Russian Tsar with American virgins while Adams was Commissioner to Russia (which was not true); the Adams camp produced the Coffin Hand Bill, which accused Jackson of being a bigamist, having killed men in duels and being illiterate. All of which were true about Jackson.
Jackson could also spit blood at will on people he argued with, thanks to a dueling injury.
To be fair, Jackson’s wife did not have a proper divorce from her first husband. The stress of the election also killed her.
Adams was one of two Presidents not to attend his successor’s Inauguration. The other was John Adams.
How does a man totally defeated from the Presidency have the courage to run for the House of Representatives? How does he serve with honor and dedication until his dying day? Where does that courage come from?
Congressman John Quincy Adams fought tooth and nail against the Gag Rule, the practice of tabling without reading petitions on slavery. Adams called the Gag Rule exactly what it was: an outright violation of the First Amendment, denying citizens the right to petition their government for grievances. Adams was once greeted in Ohio for his defense of the First Amendment with a banner declaring he was the “Defender of the Rights of Man.”
In time, John Quincy Adams’ allies grew. One was Joshua R Giddings. Congressman Giddings also took up many of Adams’ causes. Like most Congressmen of the time, many lived in boarding houses and ate together. Adams and Giddings lived at the same boarding. Giddings roommate was Abraham Lincoln.
So, why a bust of John Quincy Adams? Because I admire a lawyer who lived, fought and died in order to make America better.
Long, long ago, in a galaxy far far away, the planet of Tatooine apparently did not have any laws on employee safety or premise liability.
Jabba the Hutt’s Palace would make thousands of OSHA inspectors scream out in horror, then nothing.
Jabba’s safety standards raise many issues as they related to employees (such as the guard who fell in the Rancor Pit), independent contractors (Boba Fett) and those held in servitude (Oola, the green dancing girl fed to the Rancor & Princess Leia).
Employers’ Duty to Employees
Provided the Old Republic had similar employee protection laws to the United States, an employer:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
29 USCS § 654(a).
Additionally, floors with holes that “persons can accidentally walk” into (such as on a construction site) must be guarded by a railing or cover. W. C. Sivers Co. (1972) OSHRC Docket No. 239, 1973-1974 CCH OSHD P 17792, 29 CFR 1926.500(b)(8).
The Trap Door to The Rancor Pit
Jabba the Hutt used a trap door to 1) dispose of Oola, the dancer who displeased Jubba and 2) attempt to eliminate Luke Skywalker, accidentally sending a guard to be a snack for the Rancor.
Oola’s case highlights several issues: She was held in Jabba’s Palace against her will and then fed to the Rancor.
Jabba’s actions would range from holding someone in slavery (which apparently was legal on Tatooine) to outright murdering her.
Jabba’s Palace Guard who fell in the Rancor Pit with Luke Skywalker was owed a duty by Jubba to be free from recognized hazards that are causing or are likely to cause death or serious physical harm.
However, as a palace guard, he also assumed the risk the different dangers that came with the job. With that said, being a palace guard does not mean he assumed the risk of falling through a trap door and being eat alive by the Rancor.
Even if the Guard could have assumed the risk of falling down the trap door, the Rancor was a wild animal (See, Wookieepedia). Case law has found that an owner of property can be liable for injuries under premises liability for a free roaming wild animal on their property provided they have knowledge of the dangerous animal. (See, The Landings Ass’n, Inc. v. Williams, 736 S.E.2d 140 (Ga. Ct. App. 2012), regarding knowledge of an alligator in a lagoon that injured someone). In Jubba’s case, the Rancor was imported to Tatooine to be used as an execution weapon in a pit. It certainly was not free roaming, but purposely contained because it was dangerous. It was highly foreseeable that the creature could accidentally eat the wrong person.
The Independent Contractor & The Sarlacc Pit
Boba Fett was an independent contractor, because he was a bounty hunter not directly employed by Jabba the Hutt. In the universe of premises liability, independent contractors are viewed as business invitees. Taylor v. Nabors Drilling United States, LP, 2013 U.S. Dist. LEXIS 14555, at *5 (S.D. Miss. Feb. 4, 2013).
What duty was Boba Fett owed by Jabba while on the Barge over the Sarlacc Pit?
A case involving an injury on an oil rig is illustrative, if we view Jabba’s barge over the Sarlacc Pit like an oil rig at sea.
Jabba as a premises owner (the barge, not the sand dunes) had a general duty to “provide an independent contractor with a reasonably safe work environment or give warning of danger.” Taylor, at *5, citing Nofsinger v. Irby, 961 So. 2d 778, 781 (Miss. Ct. App. 2007).
However, Jabba as a premises owner was not, “an insurer of the [independent contractor’s] safety.” Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002). However, “there are exceptions to the general rule, which can be reduced to two issues: who controls the work which caused the injury, and whether the contractor had actual or constructive knowledge of the hazard which caused the injury.”Taylor, at *5, citing Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 10 (Miss. 2002).
Case law states that when the premises owner “devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liabilities for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work.” Taylor, at *5.
A premises owner is “not liable for the death or injury of an independent contractor or his employees resulting from dangers that the contractor, as an expert, knows or reasonably should know.” Taylor, at *6, citing McCarthy, 829 So. 2d at 14. The Taylor Court went on to state:
Phrased differently, a premises owner will not be held liable where an independent contractor has “assumed the risk” of danger. Stokes, 217 F.3d at 357. Accordingly, an “employer is relieved of the duty of informing an independent contractor of a danger at the work site if the independent contractor knows of that danger.” Nofsinger, 961 So. 2d at 781.The “knowledge of the danger” exception . . . does not require such a close nexus between the dangerous condition and the work the contractor is obligated to perform. That rule rests on the premise that under circumstances where the contractor has knowledge of the condition, his ability to avoid the harm is equal to that of the owner of the premises. The ability of the contractor to avoid injury where he knows that a dangerous condition exists does not depend on his control over the manner in which the work is performed or his reason for being on the premises. Stokes, 217 F.3d at 359.
Boba Fett was the adult clone of Jango Fett, trained as an expert bounty hunter. Given his skill as a warrior-for-hire, he assumed the risk of engaging Luke Skywalker, Han Solo and Chewbacca in battle over the Sarlacc Pit. As such, Jabba owed Boba Fett no duty under premises liability for any injuries sustained in the Sarlacc Pit.
Rancors’ Rights: Possible Episode VII Plot Ideas
The New Republic may mean the end of Slave Leia outfits, but what about the Rankors of the universe? Will the outlawing of slavery in the New Republic mean these creatures could still be held against their will for brutal entertainment? Let’s review one California case for a possible outcome.
Plaintiffs in California brought a Next Friends case on behalf of orca whales held at Sea World, claiming the whales’ 13th Amendment rights were being violated. Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).
That’s right, the Killer Whales were the Plaintiffs.
After lengthy historical analysis, the Court held the 13th Amendment applied only to persons, not non-humans. Tilikum,at *1263.
In the case of the Rancors, it is unlikely a law prohibiting slavery would apply to them, as they were simply eating machines. As such, the New Republic would need specific legislation to ensure the safe and humane treatment of Rancors.
Star Trek Deep Space 9 addressed many legal issues in its seven seasons, from whether a host of a symbiont could be tried for the crimes of a past host/symbiont (Dax), to the right to a fair trial (Tribunal) and prosecutorial misconduct from presenting false evidence in a court hearing (Rules of Engagement).
Some of the biggest legal issues presented were on Ferengi culture across multiple episodes. Ferengi law prohibited women from wearing clothes, leaving the home, learning to read and earning profit. Moreover, 53% of Ferengi population was female, casting the laws as a form of gender-apartheid.
Adding insult to further injury, women who wished to marry had to sign a Waiver of Property & Profit, which was a prenuptial agreement that prohibited the prospective wife from 1) owning any property and 2) making any claims against the husband’s estate in the event the marriage ends.
Many of these issues were the central themes in the episode Ferengi Love Songs, which addressed prenuptial marital agreements and equal protection under the law.
Validity of Ferengi Prenuptial Agreements
In Community Property states (or planets), property acquired during a marriage is the joint property of the “community” and would be divided equally at either divorce or death (unless the community interest owned by the deceased spouse is specified in a will). Conversely, property acquired before marriage, or acquired by gift or devise, is the separate property of a spouse.
However, the property rights of the community may be altered by a “contract” between the husband and wife (such as a premarital agreement).
In California, these agreements are executed without consideration and become effective when the marriage begins.
And no [fictional] race is better at contracts than the Ferengi.
Considering these legal principles, could the Ferengi Rom have a valid prenuptial agreement with his Bajoran fiance Leeta that prohibited her from having an interest in his property?
Could Rom prohibit Leeta from owning any property?
As a preliminary matter, simply decloaking before a prospective wife with such an agreement is pretty much entering the command code to set your relationship on self-destruct. With a zero second countdown. It truly would be the no-win scenario.
California law states for a premarital agreement to be enforceable, the following must be demonstrated:
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
Cal Fam Code § 1615.
Right out of the space dock, the premarital agreement would be unenforceable on its face if the prospective wife was not represented by counsel to advise the prospective wife on her property ownership rights or possible community property rights. Additionally, there would be a strong public policy agreement against stripping the prospective wife of her right to own any property. That alone would leave the premarital agreement dead in space.
While case law has upheld premarital agreements with spousal support waivers that are “executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver,” divesting a woman of her right to own any property would completely destroy the prospective wife’s ability to be “self-sufficient in property and earning ability.” In re Marriage of Pendleton & Fireman, 24 Cal. 4th 39 (Cal. 2000). Moreover, there is a huge difference between contracting away spousal support rights and a woman being reduced to property.
Turning to Oklahoma case law, an “antenuptial agreement” is enforcement if it is “fairly procured.” Okla. Stat. Ann. title 84, § 44; In re Estate of Cobb, 305 P.2d 1028, Syl. P 2 (Okla. 1956). One Oklahoma case stated:
To ensure fairness, antenuptial agreements that make no provision for the intended wife are given the “closest scrutiny.” Cobb, 305 P.2d at 1031. Further, agreements that do not provide (or meagerly provide) for the intended wife are valid only where “a full and fair disclosure was made to her of the extent and value of [her prospective husband’s] property before she signed it, or that she was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing . . . .” Id. at 1032 (emphasis added).
Gant v. Gant, 1994 U.S. App. LEXIS 20603 (10th Cir. Okla. Aug. 4, 1994).
The Gant case would be of little help to finding an enforceable Ferengi prenuptial agreement, because even if the prospective wife understood the value of the estate she was relinquishing, one could not argue giving up an interest in a future husband’s estate is the same as giving up her right to own property herself.
It is highly unlikely that a prenuptial agreement that prohibited a wife from owning property would be valid. However, a prenuptial agreement that only protected the pre-marriage assets of the parties is a “traditional” prenuptial agreement. If Rom simply wanted to protect his own estate in the event of divorce, it likely would be a valid prenuptial agreement, depending on how the agreement was executed. Consider the following valid marital agreement:
WHEREAS, the parties to this agreement contemplate entering into the marriage relation with each other, and;
WHEREAS, [the husband], individually owns certain tangible and intangible property, a list of which is set out hereinafter in Exhibit ‘A’, the nature and extent of which has been disclosed to the [wife], and he desires that all property now owned or hereafter acquired by either [sic] shall be free, for purposes of testamentary disposition, divorce or otherwise, from any claim of the [wife], that may arise by reason of their contemplated marriage, other than as set out herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, it is agreed as follows:
1. Both before and after the solemnization of the marriage between the parties, [the husband] shall separately retain all rights in his own property, including all interest, rents and profits which may accrue or result in any manner from increases in value, and he shall have the absolute and unrestricted right to dispose of his property, free from any claim that may be made by the [wife] by reason of their marriage, and with the same effect as if no marriage had been consummated between them, whether such disposition be made by gift, conveyance, sale, lease; by will or codicil or other testamentary means; by laws of intestacy; or otherwise. Any property, real, personal or mixed, acquired after the date of said marriage shall be considered joint property unless agreed to in writing, signed by both parties.
. . . .
8. [The wife] has examined the financial statements attached hereto and made a part hereof as Exhibit ‘A’ and has had the opportunity to question and examine all items therein, and acknowledges that fair disclosure has been made by [the husband], as contemplated under the provisions of Section 43-8-72, Code of Alabama (1975), as amended. Each certifies that he or she has had an independent and separate counsel and has been independently advised and has been given, without limitation, all information requested. Each further certifies that counsel has advised and informed him or her of the legal effects of this document.
9. In the event of the death of [the husband] or the granting of a final divorce decree, [the wife] shall have no right to any claim against the estate of [the husband] based on spousal or marital rights including, but not limited to maintenance, support, or property settlements, by reason of or on account of dissolution of the marriage, or by reason of death.”
Exhibit A, which was a document attached to the antenuptial agreement, was labeled “Property to be Retained by [the husband], Individually, Without Any Claims by [the wife],” and it included six paragraphs identifying real and personal property, as follows:”
1. Any pension plan, including all stocks owned prior to marriage of parties, and including any IRA accounts, SEP IRA accounts or 401k accounts.
2. All checking and/or savings accounts, including money market accounts individually owned by [the husband], prior to marriage of the parties.
3. All jewelry owned by [the husband], including jewelry passed down to said [husband] by his parents, and/or grandparents, including his mother’s engagement ring, grandmother’s engagement ring, mother’s diamond/ruby ring, mother’s emerald ring, and father’s diamond cluster ring.
4. Automobiles owned prior to marriage, including BMW automobile [and] Ford Explorer.
5. Home, real estate, and furnishings located therein, located at [the marital residence].
6. All personal property and belongings owned by [the husband] prior to the marriage of the parties.”
Hood v. Hood, 72 So. 3d 666, 670-671 (Ala. Civ. App. 2011).
There is no question that a court, especially considering the contract would provide nothing to the wife in the event of divorce or death, would closely review a prenuptial agreement.
To be valid, a court would require having Leeta at least be represented by an attorney, with an opportunity to fully review Rom’s assets and understand what rights she was waiving.
Even then, the former Dabo Girl turned Jumja stick vendor, still might have been at a disadvantage to negotiate, given their differences in economic abilities.
Sadly, the episode does not have a happy legal ending, because neither party had an attorney. Instead of a prenuptial agreement that protected the interests of both Rom and Leeta, Rom gave away his money to an orphanage (a win for the children), effectively taking a vow of mutual poverty to marry Leeta.
If only there had been a law firm on DS9….
Now, let’s talk about equal protection under the law for Ferengi women who are banned from reading, wearing clothes, leaving the house, having a job, or earning profit….
…and don’t forget about the potential harassment suits over Quark’s employment contracts over Oo-mox….
Unless you have been time locked in the The Last Great Time War, most science fiction fans recognize that Matt Smith’s 11th Doctor has ushered in a Bow Tie Renaissance.
Doctor Who, without question, has done wonders for bow tie awareness with “Bow Ties Are Cool.” However, lawyers and judges have worn bow ties for as long as there has been the United States of America.
Great bow tie wearing American legal minds have included Clarence Darrow, John Quincy Adams, Joesph Welch, John Paul Stevens and Abraham Lincoln.
You also cannot say “bow tie” without saying Winston Churchill.
I personally made the switch to bow ties in 2007, so I would stand out from other speakers on eDiscovery. Bow ties are also just cool.
Case in point: Before a community legal event, the elected District Attorney and Public Defender both complimented me on my bow tie, demonstrating bow ties can bring both sides in the administration of justice together.
What have judges said about bow ties in court opinions over the years? Let’s review the legal valet of bow ties.
Residual Fear of Bow Tie Wearing Law School Professors
Some lawyers and judges had rough encounters with bow tie wearing professors in law school. Exhibit A of such negative long term memories:
This is a difficult case. It involves several discrete areas of New York contract law coupled with imperfect facts; the combination of which is appropriately found on the pages of cruel contracts exams given by law professors clad in bow ties. Nevertheless, pursuant to this Court’s diversity jurisdiction, the following facts were adduced and legal issues raised by the Parties for this Court to resolve.
Grandis Family P’ship v. Hess Corp., 588 F. Supp. 2d 1319, 1321 (S.D. Fla. 2008).
The Clothing of Contempt
Justice Joseph Boyd from the Supreme Court of Florida made the following point in a dissenting opinion on whether someone could be held in contempt based on courtroom attire (in the case, a string tie):
It is interesting to observe that the female Assistant Attorney General who appeared before this Court against petitioner was wearing an attractive coat, shirt and tie which would have been considered extremely unorthodox forty years ago. Apparently if the male petitioner in this instance had been wearing the same coat, shirt and tie worn by the female Assistant Attorney General the trial courts would not have cited him for contempt. The irony of the situation is further illustrated by the fact that if petitioner should become a judge and should determine it proper for all male attorneys to wear string ties when appearing before him, he might well cite all non-conforming members of the Bar for contempt. If trial judges can require male attorneys to wear ties preferred by said judges then those who wear bow ties may require the wearing of bow ties and those who wear blue ties may be offended by those who wear red ties.
Specifically, it is my opinion that judges are not permitted by the Federal or State Constitutions, statutes or rules of court, to hold an attorney in contempt for wearing any type of clothing in courtrooms so long as such clothing does not interfere with the proper administration of justice or demonstrate disrespect for the court or judicial proceedings.
Sandstrom v. State, 336 So. 2d 572, 578-579 (Fla. 1976).
Bow Ties & Religious Freedom Under the First Amendment
In a case pertaining to what sorts of ties a prisoner could wear, the Court had to address whether prohibiting the Plaintiff from wearing a multi-colored bow tie violated his religious freedom in prison.
A Department of Corrections policy directive, No. 4911, lists types of clothing that inmates are permitted to wear. The list of acceptable items includes “Neckties – cloth, solid colors only,” and “Bow ties.” Since a bow tie is a type of necktie, and the directive specifies that only solid-color neckties are permitted, the directive is reasonably read as allowing solid-color bow ties and prohibiting multi-colored bow ties. Defendants introduced evidence that they informed Allah that his confiscated bow tie was unacceptable not because it was a bow tie, but only because it was multi-colored, and that there was no institutional objection to his having solid-color bow ties. Since there was evidence that wearing any color bow tie is an acceptable exercise of the Nation of Islam religion, the trial court’s conclusion that the prohibition against Allah’s wearing a multi-colored bow tie did not infringe his rights was not erroneous.
Allah v. Irvin, 1995 U.S. App. LEXIS 39868, 2-3 (2d Cir. N.Y. Nov. 17, 1995).
Bow Tie Wearing Jurors: The Scourge of Criminal Defense Lawyers
Judge William Hungate stated the following regarding peremptory strikes, jury selection and bow ties:
Some well-known and successful criminal defense lawyers have expressed views about jurors that to others may seem idiosyncratic, if not absurd. Percy Forman, one of the more successful, is leary of Germans, Russians, and others with a strong sense of law, order, and “tribal tradition.” Louis Nizer has said he is suspicious of prospective jurors with beards or bow ties: “They’re usually individualists who will try to win a jury over to their view.“
United States v. Johnson, 721 F. Supp. 1077, 1081 (E.D. Mo. 1989)(Emphasis added).
All things considered, Louis Nizer did have a valid point on people who wear bow ties: We tend to “think different” and are not afraid to stand out.
Ingratiating Bow Ties
Supreme Court Justice John Paul Stevens, a long time bow tie wearing justice, made the following point in dissent with bow ties as an example, simultaneously showing the contrarian nature of some bow tie wearers:
Consider the following scenario. A crafty homeowner in need of a mortgage, having learned that the bank’s loan officer is a bow tie aficionado, purchases his first bow tie to wear at their first meeting. As expected, the loan officer is wearing such a tie, which, incidentally, the prospective borrower considers downright ugly. Nevertheless, thinking that flattery will increase the likelihood that the officer will be favorably disposed to approving the loan, the applicant swallows hard and compliments the officer on his tie; he then volunteers the information that he too always wears a bow tie. This is a lie. Under the majority’s interpretation, this person could spend 30 years in federal prison. He made a “false statement.” 18 U.S.C. § 1014. In fact, until that day he had never worn a bow tie. And the statement was made “for the purpose of influencing” the bank. Ibid. The applicant subjectively hoped that the loan officer–flattered and feeling a sartorial common ground–would be more likely to approve his mortgage.
United States v. Wells, 519 U.S. 482, 513 fn 14 (U.S. 1997).
The FBI vs Bow Tie Attorney
Litigation can raise blood pressure and cause out-of-character behavior. In one case, a FBI Agent threatened a bow tie wearing attorney. The attorney invited the Agent to meet him outside and also reported the threat to the Court. The judge stated the following:
Agent Long is an experienced FBI agent. Mr. Skepnek, an able attorney with a jovial personality whose in-court manner can be characterized as that of an exuberant gladiator, has a penchant for bow ties. He played football at the University of Kansas and is approximately ten years younger and forty pounds heavier than Agent Long.
Agent Long’s unprovoked conduct in the courtroom raises questions not only as to his training and ability as an FBI agent but also as to his judgment and belief in his own physical capabilities. In light of Mr. Skepnek’s strongly stated disclaimer that any intended intimidation was effective, the Court finds that the quality of the defense afforded the defendant has not been jeopardized.
The Court finds further that perhaps the appropriate sanction would be simply to direct Agent Long to attempt to carry out his threat. While Mr. Skepnek might be willing to “participate” in the imposition of this sanction as evidenced by his response to Agent Long, the Court concludes that such sanction might very well constitute cruel and unusual punishment in contravention of the eighth amendment to the United States Constitution. So, because the defendant has withdrawn any further demand for sanctions, the Court happily deems the matter MOOT.
United States v. Ryans, 1989 U.S. Dist. LEXIS 18274, 2-3 (W.D. Okla. May 5, 1989)
I’m Your Private Trademark Lawyer
In a case that could have had attorneys fighting over who would argue the merits, and others perhaps having tearful memories on how they paid off law school loans, one Court provided the trademark history of Chippendales’ “Cuffs & Collar” uniform, complete with a diagram:
The applicant, Chippendales, is in the business of providing adult entertainment services for women. It opened its first strip club in Los Angeles in 1978. In 1979, Chippendales performers began wearing an abbreviated tuxedo–wrist cuffs and a bowtie collar without a shirt–as part of their act. This costume, referred to as the “Cuffs & Collar,” was featured prominently in Chippendales’ advertising and performances over the past several decades.
It is set forth below: In November 2000, Chippendales filed an application to register the Cuffs & Collar trade dress. In 2003, the United States Patent and Trademark office (“PTO”) issued Registration No. 2,694,613 for the Cuffs & Collar for “adult entertainment services, namely exotic dancing for women.” U.S. Trademark Registration No. 2,694,613 (the “‘613 mark”). A mark that is inherently distinctive qualifies for registration under the Lanham Trademark Act (“Lanham Act”). See Pub. L. No. 79-489, 60 Stat. 427 (1946) (codified at 15 U.S.C. § 1051 et seq.). A mark can also qualify for trademark protection under Section 2(f) of the Lanham Act if the mark has become distinctive through use in connection with the applicant’s goods in commerce, known as acquired distinctiveness. See 15 U.S.C. § 1052(f) (“Section 2(f)”).
Although Chippendales submitted evidence both of “inherent” distinctiveness and, alternatively, “acquired” distinctiveness under Section 2(f) of the Lanham Act, the examining attorney in 2003 concluded that the applicant was only entitled to a registration based on acquired distinctiveness. Because of the existing procedure at the PTO at the time of the decision, Chippendales could not contest the basis of the examining attorney’s decision. The sole option at that time would have been for Chippendales to request that the registration be cancelled and that the mark be remanded for reconsideration. Chippendales was about to commence an infringement action based on the registration and thus opted not to initiate the cancellation of its registration under Section 2(f). The ‘613 mark became incontestable in 2008 under 15 U.S.C. § 1065.
In re Chippendales USA, Inc., 622 F.3d 1346, 1348-1349 (Fed. Cir. 2010).
A Lawyer & His TARDIS
We began with Doctor Who and should end with Doctor Who. Ironically, there are no US court opinions referencing Doctor Who over the last 50 years.
In fact, the references to TARDIS have nothing to do with Time And Relative Dimension In Space.
In one 2011 case, “Tardis” referred to a UK product that pertained to wire strippers and can machines. J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2797 (U.S. 2011).
TARDIS is also referenced in cases involving air traffic safety. TARDIS is an acronym for “Terminal Automated Radar Display Information System,” which is an inexpensive radar system designed for air traffic control. Collins v. United States, 564 F.3d 833, 838 (7th Cir. Ill. 2009).
The First Question
There is no question there are geek judges, as evidenced in court orders referencing Star Trek and Star Wars. Rassilon’s gauntlet is now thrown down for a judge to include a Doctor Who reference in a court opinion.
The question remains, who will be the first to reverse the polarity of the neutron flow and cite Doctor Who in a footnote?
The 1936 Flash Gordon story Planet of Peril, Chapter 1 to the Space Solders serial, present very interesting issues in air travel and the duty of a common carrier.
Alex Raymond’s classic charters Flash Gordon (Buster Crabbe) and Dale Arden (Jean Rogers) made their big screen debut in 1936 during an ill-fated flight in a meteor shower. In what would seriously disturb any traveler in post 9-11 America who complain about taking off their shoes, the pilot told the passengers they could put on parachutes and bail out. The pilot further stated:
There is a parachute under every seat. We were ordered to bring them aboard this morning in the case of any trouble.
In a remarkably limited display of screaming, passengers put on parachutes and bailed out of a trimotor aircraft.
The Duty of Common Carriers
Everyone who has ridden a bus or taken a plane flight has been on a common carrier.
A “common carrier” is an regulated industry that transports goods or individuals and is responsible for the loss of goods during the transportation. Given the nature of transporting people or goods, a carrier owes a passenger “the highest degree of care.” Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 2-4 (9th Cir. Cal. Dec. 15, 1995), citing Marshall v. United Airlines, 35 Cal. App. 3d 84, 110 Cal. Rptr. 416, 418 (Cal. Ct. App. 1973).
Common carriers have a heightened standard of care because “during travel a passenger is exposed to numerous hazards while his or her freedom of movement is entirely under the control of the carrier.” Brasseur, at *2, citing Orr v. Pacific Southwest Airlines, 208 Cal. App. 3d 1467, 257 Cal. Rptr. 18, 21 (Cal. Ct. App. 1989).
The duty applies while passengers are in transit and “until they have safely departed from the carrier’s vehicle.” Id. Moreover, “[u]ntil the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger the rule of utmost care and diligence . . . still applies.” Brasseur, at *2-3, citing 110 Cal. Rptr. at 419 (quoting Brandelius v. City & County of San Francisco, 47 Cal. 2d 729, 306 P.2d 432, 436 (Cal. 1957)).
It is also worth noting what “ditching equipment” is required under the law for commercial aircraft:
(a) Emergency flotation and signaling equipment required by any operating rule in this chapter must be installed so that it is readily available to the crew and passengers.
(b) Each raft and each life preserver must be approved.
(c) Each raft released automatically or by the pilot must be attached to the airplane by a line to keep it alongside the airplane. This line must be weak enough to break before submerging the empty raft to which it is attached.
(d) Each signaling device required by any operating rule in this chapter, must be accessible, function satisfactorily, and must be free of any hazard in its operation.
14 CFR 23.1415.
Parachutes are not on the list. Just imagine how messy it would be if 787’s had ejection seats and one went off at 39,000 feet.
No Bailing Out on Liability
The transcontinental airline was 1) a common carrier and 2) owed Flash and Dale a heightened duty of care.
Given the planetary dangers Earth was experiencing, including the parachutes enabled the passengers to escape the doomed aircraft.
However, if the danger was so great that the plane was required to add parachutes (which no commercial airline does), it probably would have been safer NOT to fly in adverse weather (if a meteor shower can be considered weather) and subject the passengers to the danger of bailing out of a plane without skydiving or survival training.
On the flip side, parachute instructions would make for a very entertaining in-flight safety briefing.
Once the passengers were safely on the ground, the heightened duty of care would not have ended, because parachuting into an unknown area would not leave the passengers safe and the airline free of responsibility. The airline could not argue that the passengers were “outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger,” because the passengers were scattered about the countryside wherever the wind took them.
By way of example, a passenger was not owed a heightened duty because the airline did not warn her about the possibility of a hurricane hitting after being safely delivered to Cancun. Brasseur v. Empire Travel Serv., 1995 U.S. App. LEXIS 36967, 4-5 (9th Cir. Cal. Dec. 15, 1995). This case would be very different than Flash’s situation, since the airline did not deliver the passengers safely to their destination. Moreover, the airline also knew of dangerous conditions prior to takeoff from the meteor storm. As such, a Court would likely find an airline that requires passengers to bail out of a plane is not free from ensuring the passengers’ safe rescue, thus ending the airline’s heightened duty of care.
However, getting on an untested rocket ship would be an unforeseeable intervening factor that an airline could not be responsible for continued passenger safety.
A Rocket to Mongo & Heightened Duty of Care
The airline was not the only common carrier in Flash Gordon: Professor Zarkov’s rocket arguably would be considered a common carrier. Moreover, society would require people who build rockets in their backyard to be responsible for the safety of those anywhere near such a potentially dangerous machine.
Professor Zarkov negotiated with Flash to join him on his spaceflight to save the Earth from the planet Mongo on a collision course with Earth. Gordon agreed, provided Dale could join them [Note, unlike the 1980 movie, Zarkov did not kidnap Flash and Dale at gunpoint]. While this is a very basic example of contracting for transportation (without a liability release and covenant not to sue), Zarkov providing transportation to another planet would expose Flash and Dale to numerous hazards while their freedom of movement was entirely under the control of Zarkov. As such, Zarkov would owe them a heightened duty of care on their spaceflight.
Highlighting the dangers to Dale and Flash (and legal risk to Zarkov), Professor Zarkov forgot to turn on the oxygen before take off, causing a significant life threatening risk to his passengers from asphyxiation.
Upon landing on Mongo, the passengers immediately face numerous risks, including giant lizards, being captured by armed and well-armored soldiers, fighting men with fangs and an alien culture where the men wore short-shorts without pockets (One of the few times in SciFi where the female characters arguably had more clothing).
Professor Zarkov’s heightened duty of care may have ended when they safely arrived on Mongo (albeit for a brief time), just as the airline did not have a duty to warn about a hurricane after getting a passenger safely to her destination. Moreover, it would be unreasonable for Zarkov to be held responsible for the unforeseeable actions of Ming, the Shark Men, Vultan or Princess Aura. Flash and Dale arguably assumed the risk of the unknown when they agreed to fly into space with Professor Zarkov.
The Princess vs The Damsel in Distress
Finally, it is worth noting that the stronger female character was Princess Aura, Ming’s daughter. Aura was willing to stand up to her father Ming, hit her targets in a ray gun fight, showed no fear in taking immediate action and dressed down those threatening her. However, she was both possessive and manipulative, which were serious negatives.
Dale Arden, on the other hand, constantly needed to be saved by Flash. A relationship based on perpetually rescuing someone would be as healthy as flying on a commercial airline that required parachutes. Fortunately, the character was stronger in the 1938 Flash Gordon’s Trip to Mars.
Countdown to Darkness, the official Star Trek comic prequel to Star Trek Into Darkness, has come out with its first two issues.
How is Robert April the “villain”? He deserted his Enterprise, thanks to a cover-up by his First Officer, to stop the minority of a pre-warp society from being butchered by the majority known as Shadows.
It is highly unlikely a JAG officer will make an appearance in the story, but it is obvious that Captain April can be charged, and convicted, of a violation of the Prime Directive. His former First Officer also could be charged with a conspiracy to violate the Prime Directive and any subsequent crime by April in furtherance of the conspiracy. However, the former XO might not be responsible for additional arms smuggling, as that arguably is outside the scope of the original conspiracy for April to leave the Enterprise to help fight against the Shadows. It would all depend whether the Executive Officer contacted the arms dealers.
