Law of the Federation

University of Toledo Law Review
Volume 24, Number 1 (1992)
reprinted by permission of the authors

THE LAW OF THE FEDERATION: IMAGES OF LAW, LAWYERS,
AND THE LEGAL SYSTEM IN "STAR TREK: THE NEXT
GENERATION"

Paul Joseph and Sharon Carton*

I. INTRODUCTION

During the last twenty-five years, Star Trek and its progeny have
come to occupy a unique place in American popular culture.¹ While
the show began as a short-lived and marginally rated television series
which survived d only three seasons before final cancellation, ² the Star Trek
phenomenon did not end there. First, through syndication, the show
gained a following it had never had as a network offering. Star Trek
conventions provided gathering points for the faithful. A series of feature
films updated and continued the story.³ Books,⁴ a cartoon series and

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merchandising spinoffs⁵ helped to keep Star Trek in the minds of the
public.⁶ Fan pressure prompted NASA to name the first space shuttle
"Enterprise" after the starship on the show. The humorous late night
show, "Saturday Night Live," twice parodied the show and its cult of
hard core adherents.⁷
Eventually, the continued popularity of the original Star Trek led to a
second series, this time playing first-run in syndication, Star Trek: The
Next Generation (STNG).⁸ More recently, a third Star Trek series, Deep
Space Nine, has begun production. It is scheduled to premiere in January
of 1993.⁹
For most of its twenty-five year history, its original creator, the recently
deceased Gene Roddenberry,¹⁰ exercised considerable control over the
development of Star Trek in its various incarnations:¹¹

Roddenberry's "vision of the future" remains a guiding light for the con-
tinuing "Star Trek" saga, says Rick Berman, executive producer of "Star

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Trek: The Next Generation." "Gene felt strongly about the goodness of
mankind," Berman says. "He knew there were rotten things also, but he
liked to think of the future where wonderful things would continue and
man could enhance the quality of his life."¹²

Today, Rick Berman fills much the same position.¹³ Thus, there was a
conscious effort to develop and examine certain ideas or themes,¹⁴ and a
greater consistency existed than there might otherwise have been without
such a guiding vision.¹⁵
STNG represents the best example to date of the themes of the Star
Trek saga.¹⁶ The basic concepts, set down in the original series, have been
more fully developed and presented through the interaction of the
characters.¹⁷ This is probably because STNG has survived longer than its
predecessor and has achieved commercial popularity its predecessor never
did during its initial run.¹⁸ Thus, its production team has been able to

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develop its themes over a longer period of time, with larger budgets and
with less interference than was true of the original series.¹⁹
     The show takes place in the 24th century of our future. Earth is united
and one part of an alliance, The United Federation of Planets, encompassing
many species, located on planets in numerous star systems. The show is
set primarily on the flagship of that Federation, the U.S.S. Enterprise, a
descendant of the craft featured in the original series and feature films.
While technology and spectacular special effects are important components
of the series, more important is the interaction among the ensemble cast
and with various others, both friend and foe, whom they encounter.
     The producers of the show take the view that they are telling human
stories about today, not merely throwing around "gee whiz" technical
gadgetry. While the stories are intended to present human issues and
problems which we face today,²⁰ it is not intended that the people, their
structures or their answers to problems be an exact duplicate of modern
times. Rather, what is presented is a vision of a developed species, several
steps closer to perfection than we are today.²¹
     To accomplish their dual goals of telling stories relevant to our present²²
while presenting a vision of a positive future,²³ by necessity, the producers
have had to create at least the outlines of the culture and society of the

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24th century.²⁴ Thus, what is presented is not only what 20th century
people do, but a vision of what we should do and who we should strive
to become.²⁵ This makes STNG a very interesting prism through which
to view 20th-century institutions, and it becomes reasonable to ask whether
the Star Trek future has anything to teach us²⁶ about our present reality
and the directions which our society should or should not take.²⁷
A legal system is not wholly separate from the general culture. It grows
and changes in response to growth and change within the society which
creates and uses it. If the society of the future has progressed and changed
in other ways, we would expect to see some similar progress and change
within the legal system as well. Just as other areas of human interaction
are explored in the show, perhaps the fictional setting of STNG has
something to say about what our law and legal system is or should be.
We had none of these thoughts when we began watching STNG. We
certainly never thought we would write about it. Yet, over time, we
independently began to notice how often legal issues or ideas cropped up
and how often they were worth a second look. What follows is our
examination of the legal side of the 24th century as portrayed in STNG.
We first consider the legal system and then present various substantive
legal issues.

II. LAW AND SOCIETY IN THE 24TH CENTURY

Neither Gene Roddenberry nor the STNG production team ever sat
down and designed a legal system. What they did was deal with legal
problems on a case-by-case basis, while attempting to be consistent with
the rest of what they had created.²⁸ Thus, it is useful to consider the

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show's 24th century in general to determine its operative principles,
examine what has been presented concerning law and the legal system and
then attempt to explain what a legal system would have to look like to
be consistent. Only then can we ask whether it should be a model for
our real, as opposed to our fictional, future.
We assume that there is some relation between law and society such
that a legal system will embody the history and cultural development of
the people who created and use it.²⁹ Therefore, the legal system of the
Federation will reflect, in some manner, the values, goals, needs and
experiences of the 24th century as well as the process of historical
development from our century to theirs.³⁰ Some of the features of their
legal system will be familiar to us, but others could be quite different.
The STNG writers/directors guide³¹ developed to present the basic
framework of the show to those involved in particular episodes, explains
something of the nature of the 24th century as envisioned by the creators
and developers of STNG. In addition, individual shows have established
some elements of history leading up to the time period portrayed in the
24th-century milieu.³² These are the starting points. The legal system must
be consistent and in harmony with what is already known about STNG's
24th century.

III. THE 24TH-CENTURY LEGAL SYSTEM--AND OUR OWN

The fundamental ends of legal systems do not change, although the
means of achieving those ends do. A system of law must settle disputes,
give to each litigant that which he or she is due and do so with a process
perceived by the participants, and the society at large, to be fair.

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     The 20th-century legal system may be characterized as one heavily
influenced by conflict and distrust. Litigation is conceived of as a battle
between hostile adversaries with truth and justice belonging to the victor.³³
Our distrust of each other (including government officials) makes us insist
upon elaborate procedural formalities (e.g., evidence codes, rules of civil
and criminal procedure, discovery rules, etc.) to assure fairness.³⁴
Decisionmakers (i.e., judge and jury) must be uninvolved neutral persons,
and there must be a multi-layered appeals process. It would be unthinkable
to have a friend, employer or the superior officer of a litigant as the
judge in the case.
     Within the context of the Star Trek saga, it has been established that
humanity went through a difficult time on the road to the 24th century.
For example, one episode tells us that, during a barbaric period following
a nuclear war, the legal system established the rule that defendants were
"guilty until proven innocent" and that lawyers were killed.³⁵
     The society of the 24th century, however, has evolved beyond the world
we know and also beyond the time of troubles. "[M]ost ... of the major
problems facing the human species have been resolved;"³⁶ material want
(the source of much 20th-century conflict) and money are no more.³⁷
People, while not perfect, appear to trust each other more, work together
more harmoniously and feel a greater sense of community and mutual
responsibility than people in 20th-century American society.³⁸

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     These differences would not be expected to change the basic goals of
the legal system, but they would be expected to change some of the ways
in which these goals are achieved. It would be expected that a thoughtful
presentation of future possibilities would reflect a system of law recognizable
to us, but modified to reflect the changes in people and society which the
show embodies. When we examined the legal system, as presented on
STNG, we found such changes.
     Because people in the 24th-century trust each other more and are more
willing to believe (until the facts show otherwise) that others will be fair,
there is much less concern about legal formalities. Fundamental principles
of justice are recognized and highly valued, but it is not generally necessary
to insist on procedural formalities in order to obtain them. Thus, formal
hearings with 20th-century trappings such as lawyers, professional judges
and rigid procedural requirements are rare.
     It appears that the rights which we hold dear in the 20th century are
still a part of the 24th-century legal system. The Drumhead³⁹ makes clear
that accused persons are innocent until proven guilty, that there must be
evidence of guilt to proceed against an accused⁴⁰ and that an accused
cannot be forced to be a witness against himself.⁴¹ We also learn that
these (and other) fundamental rights are guaranteed in the Federation
Constitution, the equivalent to our Bill of Rights.⁴² In The Measure of a
Man, JAG officer Phillipa Louvois explains, "We have rule of law in
this federation. You cannot simply seize people, and experiment with
them to prove your pet theories."⁴³
     In our time, we protect fundamental rights through detailed procedural
rules and interpretive judicial decisions. This may be one reason that

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laypeople criticizize the system (especially the criminal part of it) as a
"game", in which truth becomes subsumed to demands of procedural
exactness. In an adversary system where even the neutral decisionmakers
(i.e., judges) are elected or appointed as part of the ongoing political
process, it is unlikely that, for example, criminal defendants, crime victims
and the public at large would agree on informal methods of dispute
resolution. In such a distrustful system, procedural regularity substitutes
for trust.
     In STNG, formal invocations of rights are rare, even though the
principles of fairness they embody are often referenced. The reason
appears to be that the litigants themselves generally neither demand such
procedures nor see the benefit of them. Even people in conflict want to
be fair and settle matters so that all parties are satisfied (if not happy)
with the process and the results. It is rare that conflict reaches such a
high level that informal resolution is not possible.
     Most of the time, the legal system portrayed in STNG is consistent
with this analysis. Lawyers or judges are almost never seen, formal
procedure is minimized and informality is the rule.⁴⁴ Even when conflict
exists between individuals, the parties seem to retain the perspective that,
as part of the societal group, they want the conflict resolved rightly, not
just in their favor.
     It would be unrealistic, however, to portray the 24th-century man or
woman as perfected (as opposed to somewhat more evolved), and STNG
does not do this. Although it happens less often than today, people in
the 24th century can lose their perspective. At times, even a 24th-century
person may act like the worst kind of 20th-century person, e.g.,
unreasonable, grasping, unfair and unwilling to settle for anything less
than the most he or she can possibly get.
     Generally, it is in these situations that formal procedures mirroring
20th-century ones in many respects are invoked, usually by a participant
who feels that he or she is being treated with gross unfairness. Thus,
formal 20th-century procedures have not been wholly displaced, but they
have been placed in a subordinate position. Their main function is to act
as a "safety-net" when more informal processes of dispute resolution
break down.
      Of course, in some ways, this is a description of the 20th-century system
as well. Litigation begins where conflict cannot be resolved other ways.
Yet, what we find in STNG is significantly different because even many
of the "formal" mechanisms for dispute resolution are informal in the
extreme by 20th century standards. It is a system which largely relies on

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the presumed goodness of the individuals within it.⁴⁵ Only in the most
extreme cases are the formalities of "system" to be preferred over the
goodness of the individual decisionmaker. Thus, STNG is an argument
for a system of "people not of laws," so long as the people are basically
good.
     We have taken to calling the STNG legal system "dual tracked." The
essence of it is that, as long as all parties agree, the "informal" system
is followed. But, if a party insists, for whatever reason, he or she can
invoke a more formal system of procedural safeguards with its historical
roots in our own distrustful time.
     Thus, in A Matter of Perspective, the issue is whether Commander
Riker will be extradited to a planet for trial under its legal system on a
charge of murder. We are told that Starfleet Regulations give Picard the
authority to make the decision. However, Chief Inspector Krag, the official
demanding that Riker be handed over, is dubious because he does not
trust Picard to give a fair judgment in a case involving his First Officer.
He asks, "[H]ow can I expect a fair and impartial decision?"⁴⁶ For
Picard, it is not enough that he has the authority to decide. Neither does
his close relationship with Riker necessarily disqualify him from deciding.
Rather, he promises fairness to Krag and offers a compromise in which
re-creations of the events using the ship's holodeck technology will comprise
much of the evidence. Krag accepts this, and Picard proceeds as "judge"
in the case.
     Under the dual track approach, we assume that, had Krag demanded
it, he could have forced a formal hearing at a starbase before a JAG
officer. Similarly, Riker could have done so. If either had invoked these
rights, a formal hearing (as portrayed in The Measure of a Man) would
have been held. Because both Krag and Riker became convinced that they
would receive a fair hearing before Picard with the holodeck re-creation
procedure, the full blown formal trial procedure was not demanded or
required.
     The hearing actually held was an example of 24th-century informality
balanced with a concern for fairness to the individual. Picard was clearly
fair in dealing with all parties. Each witness was allowed to make a
statement before giving testimony. Picard allowed hearsay testimony because
it would be admissible under Tanugan law, but promised only to watch
it and "weigh it accordingly."⁴⁷ Picard judged the case, but also took the
lead in presenting evidence from Data and La Forge that Picard asked
them to find in his role of Captain.⁴⁸ Krag could be said to be the
prosecutor, but also a judge of sorts. The proceeding was not finally

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ended until not only Picard but Krag became convinced that Riker was
innocent.⁴⁹ This sort of blending of roles and the fluidity of the proceeding
would be unthinable in the 20th century, but makes perfect sense in the
24th.
     The "dual track" structure fits the notion of a society slowly evolving
beyond the need of 20th century formalism. In the 24th century, most
disputes can be settled informally with mutual presumptions of good faith,
trust and fair dealing. Yet, older forms have not been totally abandoned
and remain available for those rare litigants who still feel the need for
them.⁵⁰
     Formal procedures would not be invoked merely because a litigant had
not prevailed. Since there is always a disappointed party, this would mean
that formal procedures would end up being invoked in nearly every case.
Rather, it appears that the invocation of formal legal procedures would
not occur so long as all parties felt fairly treated by the process. There
would be a strong moral compulsion not to invoke such proceedings
without a very important reason beyond mere personal gain.⁵¹
     Thus, while we have seen formal trial-like procedures on STNG,⁵² they
have usually been explained, within the context of the story, in ways
consistent with our presentation of the legal system. Formal procedures
are either invoked because a particular litigant is an atypical untrusting
sort or because some other special circumstance exists⁵³ which would

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justify a demand for unusual formality and more elaborate procedural
safeguards. Two episodes, The Drumhead and The Measure of a Man,
serve to illustrate the point.
     The Drumhead begins with an interrogation of a possible spy. There
appears to be no need for lawyers or formal procedure.⁵⁴ Even when
Admiral Satie arrives to aid in the investigation, the proceedings are very
informal. Satie and Picard appear to share both investigative and judicial
functions and the "suspect," J'Ddan, does not have legal counsel in the
interrogation room. Later, at the interrogation of crewman Tarses, Picard
notes that "if you would like counsel, it can be provided."⁵⁵ Tarses sees
no need for this formality and questioning proceeds.
     Later, Picard becomes increasingly troubled about the approach taken
by Admiral Satie. Essentially, Picard is not sure that Satie is being fair
or objective. At this point, Picard, on his own motion, provides "counsel"
for Tarses, but it is Riker, the ship's first officer, and not a lawyer that
is provided. Picard says, "Mister Tarses, for your own protection, I have
assigned a counsel to you in the person of Commander William Riker."⁵⁶
Tarses, who has not yet figured out that Satie is not behaving as a normal
24th-century person would, responds, "Thank you sir but I don't need
protection. I have not done anything wrong."⁵⁷
     Finally, after Picard himself becomes the target of Admiral Satie's
witch-hunt, Picard realizes that Satie is neither fair nor objective. Thus,
more formalistic protection is required. Only then does he fall back on
the rules of procedure. Only then are they necessary to insure a fair
hearing. Picard says, "I believe that Chapter Four, Article Twelve of the
Uniform Code of Justice grants me the right to make a statement before
questioning begins."⁵⁸ The statement sounds stilted and strange because,
in normal times, a 24th-century person would not have to quote chapter
and verse to be allowed to speak. This would be granted routinely because
it would be viewed as fair by all concerned.
     The plot provides an explanation for Admiral Satie's bizarre behavior.
Satie is distraught over the death of her father, and it has twisted her.
In her grief, she has obsessively set herself on a quest for Federation
enemies. She is unable to be either objective or fair due to her personal
torment⁵⁹ Indeed, this is exactly the kind of unusual situation which the
24th-century "safety net" of formal procedure is designed to catch.

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     A similar extraordinary situation requires a formal hearing conducted
by a JAG officer in The Measure of a Man. Here too, however, we see
a series of informal attempts at resolution. Only when these fail is the
formal legal track invoked. By the time the conflict arises, Data has
already been ordered to Starbase 173 and is not technically under Picard's
command.⁶⁰ Normally, the commanding officer would decide disputes
concerning subordinate personnel, but Data is not willing to trust Maddox,
his new superior officer, to make a fair decision concerning him. There
is an exchange between Maddox and Data in which we learn that Maddox
voted against admitting Data to Starfleet Academy on the grounds that
Data was not a sentient being.⁶¹ Thus, Maddox has already made up his
mind. Further, Data is convinced that Maddox does not have the knowledge
to succeed in his experiment, thus putting Data's continued existence in
jeopardy.⁶²
     It is also clear to Picard that Maddox must not be allowed to make
this decision because, as he tells Phillipa Louvois, "I don't trust that
man.⁶³ Picard views the transfer request as "unfair and unjust." Thus,
both types of situations suggesting the invocation of the formal legal track
are present. The decisionmaker (Maddox) is not trusted by the litigants,
and the procedure (the transfer order) appears to be unfair.
     Only at this point does Picard even begin to think about invoking the
formal legal track. First, he calls up Starfleet regulations on transfers⁶⁴
and, when they prove daunting, he consults Louvois about their legal
significance.⁶⁵ Note two interesting points. First, Data's initial response
to all this is not to invoke formal legal procedures and fight the transfer
order. Rather, he resigns from Starfleet. While this probably has much
to do with Data's personality, it is instructive to see that invoking formal
legal procedure is not his first response to the situation. Second, the fact
that Picard consulted Louvois for advice to help Data did not prevent
her from being a judge in the case once formal procedures were invoked.
     Maddox asks for a decision from a more senior officer. Seeing Data
about to elude him, he must act, yet, since the issue is whether he is or
is not in command of Data, he cannot be boih a litigant and judge in
the matter without Data's consent. Maddox therefore requests a decision
from JAG officer Louvois as to whether Data can resign. Even now, the
formal legal track has not been invoked. Rather, an informal meeting
between Maddox, Picard and Louvois is held. Data is not present. There

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are no lawyers, witnesses or formal procedure. Rather, Picard and Maddox
state their positions, recognize that the issue is essentially legal and ask
Louvois to research the law and make a decision.⁶⁶
      Finally, Louvois makes a decision based on her research. Data is
property and cannot resign. Faced with this massive unfairness, Picard
asks, "What if I challenge this ruling?" Louvois answers, "Then I shall
be required to hold a hearing." Picard invokes the formal legal track:
"Then I so challenge. Convene your hearing."⁶⁷ The formal legal track,
once invoked, would normally require a 20th-century style court with
lawyers. Because the starbase is new and such are not available, senior
officers are used instead, but it is made clear that this is unusual once
formal procedures are invoked. Thus, the following exchange takes place:
Louvois states, "Captain, that [a formal hearing] would be exceedingly
difficult. This is a new base. I have no staff." Picard replies, "Surely
you have regulations to take care of such an eventuality." Louvois
responds, "There are. I can use serving officers as legal counsel."⁶⁸ We
see, then, that such a hearing would normally require actual lawyers.⁶⁹
     The informality of 24th-century proceedings is manifested in several
ways:
      1) Lawyers are seldom used. Generally, it is not even necessary to have
anyone act for a litigant as an advocate.70 When advocacy is deemed
necessary, counsel is more likely to be a friend, colleague, shipmate or
senior officer than a lawyer, unless a litigant demands one.
     2) Professional judges are seldom needed. Senior Starfleet officers are
empowered to judge most disputes, such as disputes between members of
the crew which cannot be otherwise resolved, disputes arising on board
the starship whether or not the disputants are Starfleet personnel and
disputes involving an "away team."⁷¹

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3) The strict 20th-century separation between investigators (police),
defense counsel, prosecutors and judges is not the norm in the 24th
Thus, Picard could properly investigate a problem, interview
witnesses and "suspects" and judge the case. There would not be any
problem with "ex parte communications" between himself and a litigant.⁷²
The presumption of integrity and honesty of all parties would make such
acceptable unless a litigant objected.
4) Barring unusual circumstances, insistence on precise procedures would
be rare. It is permissible to invent procedures for resolving disputes so
long as they are fair and accepted by all parties. General principles of
fairness, however, would be high on everyone's mind. Should an accused
object to a procedure as being unfair, his or her concern should be treated
with the utmost seriousness and respect. Seeing his or her objection treated
seriously would, in most cases, satisfy the litigant, even if the decision on
the point raised went against him or her.

A. 20th-Century Desires and the 24th-Century Legal System

STNG appears to present the case that a legal system which embodies
a detailed and complex body of procedural rules, as ours does, is flawed
thereby and that such a system would be unnecessary if only people were
better so that they would agree to work together to solve problems. As
humans evolve, such rule-bound legal systems will evolve away from
formalism.⁷³The better side of human nature, as it continues to develop,
will allow us to solve legal-type problems without the formalities which
are the hallmark of our present system.
This claim gives expression to longings felt by those both inside and
outside the legal profession. The public is concerned that "legal
technicalities" stifle justice and that the legal system is an expensive and

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time-consuming world of its own in which an obsessive focus on procedure
becomes an end in itself.⁷⁴ Recent hesitant steps towards adoption of
"alternate dispute resolution" procedures also speak to this concern.
These concerns also occur during a time of increasing skepticism about
the nature of the legal system. Is it a system of rules or principles at all?
Can legal rules have any objective meaning at all? Are rules neutral, or
are they a mere smoke-screen for dominant political forces applying their
own points of view?⁷⁵ Are judges confined by rules or are they really
legislating, i.e., applying their own subjective view to cases as they arise.
Should we care one way or the other?⁷⁶

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The legal system portrayed in STNG is one in which individual
decisionmakers have much greater latitude in deciding cases than the 20th-
century legal system's dominant theory permits. It substitutes good faith
on the part of the participants for formalistic procedures as the primary
source of fairness to litigants and to the discovery of truth.
One might argue that a system containing multiple layers, of technical
procedures and formalistic devices is made necessary solely because people
have not yet evolved away from selfishness, greed and distrust. Should
that day come, it could be argued, such a system would be unnecessary.
In STNG, we have a fictional vision of such an evolved time. Does the
informal legal system work in STNG's setting? Would it work in our
own?

B. How Well Does the 24th-Century Legal System Work?

     STNG creates a legal system in which formality has been replaced by
informality and procedural safeguards have been replaced by trust. The
setting for the show postulates and presents a better kind of person living
within an evolved vision of society.
     We have suggested that a legal system is created for certain purposes.⁷⁷
If it accomplishes these purposes, it will be considered to be a generally
successful system. If it fails to accomplish these purposes, it will not. It
is unlikely that a legal system will be able to carry out its primary missions
unless it provides reasonably accurate processes for determining the facts
of the case. This is especially true when facts are disputed. Unless the
facts can be determined, litigants cannot be given what they are due. If
there is no way to give them what they are due, it is unlikely that the
process of adjudication will be perceived to be fair. If the process is not
perceived to be fair, it is less likely that the dispute will actually be settled.
Therefore, we think it very important to ask how well the STNG legal
system determines the facts in disputed cases.
     An important episode in this regard is A Matter of Perspective, in
which the issue is whether Commander Riker is to be extradited to a
planet to stand trial for murder. Since the local law assumes that a suspect
is guilty until proven innocent,⁷⁸ the question of extradition is even more
critical. As previously discussed, Picard uses the holodeck to provide
three-dimensional re-creations of each person's statements.⁷⁹ This procedure

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serves very well to highlight the disagreements in the testimony between
the parties. Yet, because there is no effective cross-examination, it is
impossible to determine which story is true. Even with the help of
Counsellor Troi, whose Betazoid empathic abilities have determined that
none of the parties are lying, it is impossible, merely by comparing the
different honestly held beliefs, to arrive at the answer.⁸⁰ What does appear
to be true is that there was enough agreement among all parties to point
to Riker as a plausible suspect.⁸¹
Although the truth which clears Riker is eventually discovered, it is not
the holodeck fact-finding process which discovers it. Instead, an independent
investigation by Data, La Forge and Wesley of unexplained phenomena
aboard the Enterprise eventually leads to the conclusion that the same
cause destroyed the space station.⁸² Thus, without the fortuitous fact that
the cause of the space station explosion also caused problems on the
Enterprise, the truth would never have been discovered, and Riker would
very likely have been turned over for trial and almost certain conviction.⁸³

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     The informal features of the 24th-century legal system did not provide
an advocate for the accused or investigative staff. The defendant, Riker,
through much of the episode, appeared to be so shocked at the accusation
that he was a less-than-credible advocate on his own behalf.⁸⁴ Scientific
investigation and the study of physical evidence, beyond the holodeck re-
creation of witness recollections, were not a normal part of the proceedings.
It appears to us that had Riker had a lawyer or other trained advocate
who would have pressed opposing witnesses and conducted independent
investigations, and if more formal procedures had been followed, the
chance of an accurate determination of the facts would have increased.
While the episode turned out all right, this result appeared to be more in
spite of the informal procedures employed than because of them.
     Another episode, The Measure of a Man, explores the question of
whether the android, Lt. Commander Data, is a being with rights or
merely the property of Starfleet. The procedural progression from attempts
at informal resolution to formal hearing has been discussed previously.
For present purposes, the question is how well the formal as opposed to
the informal procedures functioned to resolve the dispute. In our view,
the "winner" is the formal adjudicatory procedures.⁸⁵ The informal
mechanisms not only do not resolve the question but often appear to be
unfair. This is especially true when the dispute involves persons outside
the small and tightly supportive structure of the Enterprise.
     At the start, Maddox comes on board having obtained ex parte orders
from a superior officer allowing him to take Data with him and conduct
experiments upon him against his will. Although Picard tries gamely to

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fight for Data (it is instructive that Data does not appear to have the
clout to fight these higher-ups himself), the effort is a failure. Data
attempts to resign from Starfleet (something he does not wish to do) as
the only way he can see to escape from Maddox. The point here is that
without formal procedures, the personalities become very important. This
gives an unfair advantage to the powerful and the highly placed. It is "a
system of men and not of law" which is the antithesis of our own system.
     In The Drumhead, although it becomes increasingly clear that something
is very wrong and unfair about the witch-hunting tactics of Admiral Satie,
the informal dispute resolution track appears to provide a solution only
to a person with great personal prestige, position and clout. First, Picard
fights Admiral Satie using the leverage that Starfleet has ordered them to
work together. When Satie then focuses her investigation on Picard, she
is stopped only because an even more powerful admiral is convinced to
order the hearings to cease.
     In the story, it is Satie who brings Admiral Henry to the Enterprise,
and she is undone when he witnesses her breakdown after Picard's
impassioned speech invoking the name of Satie's dead father. It is possible
that Picard might also have been able to bring in the admiral himself.
But could a simple crewmember have done so? This seems very unlikely.
One of the strengths of a system based on legal formalities is that the
formalities become substitutes for personal status. In contrast, the informal
system as generally portrayed on STNG appears to work best when
disputes arise within the context of a relatively small and homogeneous
group in which there are authority figures known by the disputants to be
fair and honest. Outside of this context, results are more problematic.
     In contrast, the more formal legal track is shown as achieving correct
results even when disputants do not trust each other.⁸⁶ In The Measure
of a Man, Picard eventually demands a formal hearing, which is held.
Here the litigants are represented by others who make the strongest
possible case for and against each side. There is cross-examination and

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presentation of witnesses and exhibits. The proceedings are closer to a
20th-century trial than most of the legal proceedings portrayed on STNG.
Interestingly, it is through this more formal procedure that the issue is
finally clarified and sharpened so that a correct decision can be reached.
Picard says as much in a memorable speech:

Your honor, a courtroom is a crucible. In it we burn away irrelevances,
until we're left with a pure product--the truth--for all time. Now, sooner or
later this man or others like him will succeed in replicating Commander
Data. The decision you reach here today will determine how we will
regard this creation of our genius. It will reveal the kind of a people we
are, what he is destined to be. It will reach far beyond this courtroom
and this one android. It could significantly redefine the boundaries of
personal liberty liberty and freedom, expanding them for some, savagely
curtailing them for others. Are you prepared to condemn him and all
who come after him to servitude and slavery? Your honor, Starfleet was
founded to seek out new life. Well, there it sits ... waiting. You wanted a
chance to make law, well here it is. Make it a good one.⁸⁷

     Our point is not that the system portrayed in STNG is a bad one. We
have noted that human rights are important and protected in Federation
law and that formal procedures exist and can be demanded by litigants
who require them. No system, including our own, infallibly produces the
right results in all cases. Our point is, however, that the informal system
of resolution does not work as well as might be expected. The fictional
portrayal of the 24th-century legal system in STNG requires us to confront
the question of whether a legal system with only minimal procedural
safeguards is likely to produce truth while protecting the rights of those
subject to it. Even where the litigants and the administrators of the system
are evolved people of good will, it appears that such a system is unlikely
to systematically accomplish its goals.
     The importance of procedure is not just that it controls the consciously
evil impulses of humankind. Procedural safeguards may shield
decisionmakers from the often powerful but subtle influences of emotional
and personal information. They focus attention on the particular point in
dispute rather than allowing an unfocused and diffuse process. Where a
fact question is crucial to a correct resolution, procedural requirements
can help to assure that relevant facts are properly investigated and
presented and that important points do not "slip through the cracks."
     In taking the 24th-century legal system on its own terms, we find
something of a cautionary tale for our own times. It suggests that we
should be slow to dispense with "legal technicalities" and formalities
because they play an important role in assuring that more fundamental
goals of truth and justice are realized.

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C. Conflict of Laws and Jurisdiction in the 24th Century

     The United Federation of Planets appears to be a much looser federal
system than our own. Individual planets or species retain sovereignty,
giving up only very limited powers to the Federation government. Federation
citizens are protected from Federation overreaching,⁸⁸ but no such protection
seems to be guaranteed as far as actions by planetary governments are
concerned.⁸⁹ The Federation Prime Directive is non-interference with the
internal affairs of others, and this appears to apply to Federation members
and non-members alike.⁹⁰ STNG gives the impression that commerce and
cultural interaction are very widespread. Both inside and outside the
Federation, individuals from various planets often find themselves in the
territory of some other planetary government.
     For us, the facts of the STNG universe immediately raise questions
about conflict of laws and jurisdiction. The questions are particularly
serious when dealing with Starfleet personnel who must function on many
planets and who engage in a mix of scientific, diplomatic and military
actions. When are Starfleet personnel subject to local laws? When conflicts
exist between Federation law and local planetary law, to which are Starfleet
personnel subject and under what conditions? Surprisingly, these issues
have several times been central plot devices, but, from a legal perspective,
the answers have not been completely satisfying.
      The simplest answer seems to be that Starfleet personnel are subject to
local law. Yet, it is not entirely clear either that this is the extent of the
rule or that such an answer is a good one. Two problems with this answer
are obviously apparent:⁹¹

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     1) Traditionally, diplomats are not subject to foreign laws.⁹² An important
reason for this is to prevent diplomatic personnel from being subjected
to local criminal laws to gain political advantage. The sorry episode of
the American hostages in Iran graphically makes this point. In STNG, it
is not just Federation ambassadors who engage in diplomacy. Starfleet
personnel often exercise diplomatic responsibilities as part of their normal
functions.- Yet, it is not clear that diplomatic immunity extends to Starfleet
personnel acting in diplomatic capacities.
     2) Starfleet personnel appear to be needlessly put in jeopardy by
subjecting them to local laws which violate basic norms of human rights.
An example of this is A Matter of Perspective, in which Riker is sent to
a science research station in orbit around Tanuga IV to assess the progress
of scientific research being conducted for the Federation. The scientist,
Doctor Apgar, is killed when the station mysteriously blows up just as
Riker is transported from it. When the cause of the explosion proves to
be an energy blast within the station, Riker immediately becomes the
prime suspect.⁹³ The show focuses on whether Riker will be extradited to
stand trial for murder under Tainugan law. Although the captain is
authorized to make the decision, there appears to be a presumption that
extradition will occur if there is probable cause to believe that Riker is
guilty.⁹⁴ The problem for us is that Tanugan law presumes guilt. A
criminal defendant is guilty until proven innocent. Yet, under Federation
law, guaranteed by the Federation Constitution, a person is innocent until
proven guilty.⁹⁵ It seems unacceptable that the Federation would subject
its personnel to a system so clearly violative of human rights. It also
seems implausible that there would not be clear rules outlining what is to
be done in such a situation since it is bound to crop up over and over
again.
     The same problem can be found in Justice, in which shore leave on
Rubicum III turns nightmarish when Wesley Crusher inadvertently damages
a flower bed only to discover that the one and only punishment for all

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infractions is immediate execution.⁹⁶ Picard does not seem to have clear
guidance about how to resolve the problem. While he pays lip service to
turning Wesley over, it appears that this is a stall for time. Finally, he
orders Wesley beamed off the planet even over the opposition of the
inhabitants. Yet, Picard never seems to feel that he is on solid ground.
He feels his way as if the problem had never come up before.⁹⁷
     The primary task of the STNG team is to create interesting and
entertaining television, not to construct a legal system. At times, consistency
and realism must be sacrificed to the entertainment value of the series.
Yet, it appears to us that an acceptable legal answer could have been
found in both of these shows without sacrificing the entertainment and
dramatic value of the shows.
     With regard to A Matter of Perspective, the problem could have been
solved either by cutting the "guilty until proved innocent" line or by
having Krag assure Picard that, as a Starfleet officer, Riker's trial would
use Federation law (a very nice "choice of law" solution). In Justice, we
would have liked to hear some clear statement from Picard that he would
not leave Wesley on the Planet because Starfleet regulations do not require
that their personnel submit to a legal system which is fundamentally
unfair. Wesley's initial jeopardy was really a prelude to conflict between
Picard and the powerful alien guardians of Rubicum III, and that same
conflict would have existed whether Picard's decision to remove Wesley
by force was based solely on his own judgment or was supported by
Federation law.
     In defense of the STNG writing and production team, they are not
lawyers, and issues such as choice of law and jurisdiction are less likely
to occur to non-lawyers than to people like us. Still, part of the success
of STNG is that it generally creates a believable and consistent structure.
Indeed, one of the central points in this article is that STNG deals with
legal issues with a high degree of consistency, inventiveness and accuracy.
Thus, we feel we should also point out those areas in which some
additional thought would improve the STNG universe.⁹⁸

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IV. SUBSTANTIVE LAW IN THE 24TH CENTURY

     For a show without any preconceived, unified legal framework, STNG
nonetheless espoused or implied a consistent approach on numerous
jurisprudential fronts. By examining the series' evocation of current
substantive legal issues, we hope to illuminate the social and legal mores
of our own century.
     Star Trek has attempted to confront problems in contemporary society
by placing them in a futuristic context. This enables the viewer to gain
new perspectives and insights into those problems by stepping back from
their contemporary context. This has traditionally been characteristic of
much of science fiction, but it is particularly true of Star Trek, which
reflects the utopian philosophy of Gene Roddenberry. STNG, more so
even than the classic series, has attempted to serve this goal inasmuch as
Roddenberry had more control over the creation and early development
of the new series than over the original.⁹⁹
     Moreover, STNG provokes a substantial amount of viewer attention
for the manner in which the series handles substantive legal, moral and
political issues.¹⁰⁰ This massive viewer response suggests that the series'
creators and contributors have successfully designed a different yet plausible
future which would make sense as an extension of our own. Thus, we
care how they handle these issues inasmuch as we believe that their
approach has relevance for us today.
     What is so superlative about STNG is that, without setting out to create
a 24th-century legal system or to expostulate 24th-century views on
substantive legal issues, the resulting doctrines that have emerged evidence
a consistent jurisprudence. Thus, from the existing five seasons of episodes,
we can cull not just a legal framework,¹⁰¹ but also more detailed
consideration of substantive legal issues. These provide a futuristic
perspective on problems and issues facing humanity as we face the fast
approaching 21st century.

A. Sexual Orientation and Gender

Gene Roddenbery's vision of a more nearly perfect society in the 24th
century extended to areas of gender equality. It is implicit that Starfleet
embodies legal equality for all. In addition, in its non-legal aspects, the
show attempts to include images of equality by including a diverse group
of characters. Also, the show has taken the lead in exploring matters of
customs and mores which so often provide the background for legal and
Political disputes. Eulogizing Roddenberry, one commentator noted that
STNG "moves several years ahead of the original series in the area of

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sexual equality. No longer are characters strictly token contributors whose
talents are never fully realized (namely, Lt. Uhura), nor do they serve as
the captain's 'Galactic Play Toy of the Week.'"¹⁰²
     The diversity of the STNG characters did suffer a blow with the death
of the aggressive and physical Tasha Yar. It has been noted that this left
STNG with a quorum of soft, nurturing females -- Troi, Dr. Crusher and
Guinan.¹⁰³ The appearance of the sharper, more militant Ensign Ro in
the fifth season may be seen as a promising development, one in keeping
with the stereotype-breaking model of Star Trek.
     Early STNG efforts at lambasting sexual stereotypes were not wholly
successful. In the first season, Angel One attempted to portray a society
in which women dominated; they were physically larger and more powerful
than the males of that culture and held the political power. An away
team from the Enterprise sought to reclaim Federation citizens whose
craft had apparently crashed on the alien planet. The episode showed
women to be no more effective than men when attempting to dominate
the other gender. Unfortunately, the show deteriorated rapidly as the
leader of the society seduced the classic seducer, Commander Riker, and
it was only when Riker stepped in to point out the virtues of mercy that
the female leader relented in her intransigence toward some Starfleet
prisoners. As one critic noted, "Ironically, this episode, which condemns
sexism, is probably one of the worst perpetrators of it since the classic
series' 'Turnabout Intruder.'"¹⁰⁴
     Later efforts, consistent with the effort to portray gender equality, went
further toward attaining Roddenberry's goals. In the fourth season, STNG
broached the issue of sexual orientation in an episode entitled The Host.
In this show, Dr. Beverly Crusher fell in love with an alien named Odan,
a handsome man, apparently in his thirties, with very little to distinguish
him physically from a human male. Odan was aboard the Enterprise for
a negotiation mission between two warring peoples. When Odan is injured
in an attack upon a shuttle manned by Commander Riker, Crusher
operates, only to discover that the being she knew as Odan was really
only a host body. The essence of Odan's character, emotions and intellect
were embodied in a parasitic, worm-like entity inhabiting the body of its
symbiot, a being of the Trill species. For the remainder of the episode,

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Crusher is torn between her love for Odan and his altered physical state.
When Riker becomes the temporary host for Odan, it is only after a great
struggle of conscience that Crusher recognizes she can love Odan even in
the body of her platonic friend, Riker. This development in Crusher's
awareness is stopped short, however, when Odan's new permanent host-
a beautiful young woman-arrives. Crusher realizes, lamentably, that she
cannot love Odan in his new incarnation. "Someday, perhaps ..." she
rues, and the episode ends as Crusher is disconcerted by a passionate kiss
on the hand by Odan's new host-body.
     Regrettably, this episode was seen as a cop-out by many viewers.¹⁰⁵
"The fact that Crusher doesn't embrace Odan [in the female host's body]
or continue the relationship was, to some fans, an effort to play it safe
by a show which is often challenging."¹⁰⁶ Critics opined that the series
wasted a perfect opportunity to confront bias toward sexual orientation;
had Crusher recognized that love is gender blind, she could have continued
her affair with Odan and affirmed an important social principle. Other
commentators suggest that, to the contrary, The Host was ground-breaking
material. "As the world's tolerance of homosexuality increased in the
1980's, Roddenberry decided to explore beyond the male/female sexual
relationship. He pushed sexuality to a new frontier" in shows like The
Host.¹⁰⁷
      It is our view that The Host was a significant first step in the series'
efforts at promoting an end to sexual bias. Watching Beverly Crusher
wrestle with her conflicting emotions and previously unexamined views
about love allows us to undertake the same soul searching and, perhaps,
begin to deal with our own prejudice. While a happy ending might be
more satisfying, it is precisely this satisfaction that the show denies us.
We are left uncomfortable as perhaps we should be.
     It would not be until the fifth season, however, that STNG took the
next step. In a controversial¹⁰⁸ but critically praised episode, Outcast, the
series finally confronted the issue of sexual orientation and societal bias
toward certain sexual orientations. In that episode, the Enterprise is
assisting the J'naii, a race of people who are, in the majority, gender
neutral. While at one time the species had a male and female gender,
now virtually everyone is neuter. In this show, Riker works closely with
Soren, one of the J'naii, and eventually a warm affection between the
two engenders romantic sparks. Soren confesses to Riker that there are a
limited number of exceptions among her people-individuals who feel
drawn to one gender over another. She is one such individual, who has
always considered herself female. She has muted and masked such

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inclinations, since to reveal oneself as gender preferential is to risk
psychotechtic treatment: treatment to erase the gender preference, to
recognize it as unwise and antisocial and to inculcate the gender-neutral
tendency. Riker returns Soren's feelings, but the romance is detected, or
at least sufficiently suspected, that Soren is recalled--abducted--by her
people and "treated."¹⁰⁹ Riker, in direct contravention of the Prime
Directive, but with the loyal assistance of Lieutenant Worf, attempts a
rescue, but is too late. Soren apologizes that she no longer feels that way
about him and indeed was wrong--sick--to have felt that way before.
      The point of the episode is clear: Social and legal pressures to conform
to the majority view on sexual orientation are wrong--more than just
unwise, not just ineffective (indeed, Soren's "treatment" proved
'successful"), but morally and ethically wrong. Moreover, such conformity
is seen as unnatural, just as freedom of sexual orientation is natural.
Soren's inclination to follow the female orientation was patently a fitting,
natural choice for her. Different species may offer different choices, but
freedom to choose sexual orientation is intrinsic and essential to the
individual in any species.
     Jonathan Frakes, the series' Commander Will Riker, said the show
should have gone one step further. Soren was played by a female actor,
Melinda Culea, thus making it easier for audiences to accept a romance
between her and Riker. Frakes suggested that Soren should have been
portrayed by a male actor.¹¹⁰ In this way, audiences would have had to
recognize and accept the implicit message: Even homosexual love, as we
in our century and species know it, is natural. Said Frakes, "We've gotten
a lot of mail on this episode, but I'm not sure it was as good as it could
have been--if they were trying to do what they call a gay episode."¹¹¹
     Co-Executive Producer Jeri Taylor comments that she "really wanted
to write this episode . . . . We had wanted to do a gay rights story and
had not been able to figure out how to do it in an interesting science-
fiction, Star Trek-ian way."¹¹² Producer Rick Berman acknowledged the
difficulty faced in casting the role.

We were either going to cast with non masculine men, no femine [sic]
females or females who could play an androgynous character. Obviously
you wouldn't pick a 6'4" musclebound man nor a voluptuous woman ....
It might have been interesting to go with men, but it was
a choice that we made.¹¹³

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Producer Michael Piller mentioned that STNG had "been the target of
a concerted organized movement by gay activists to put a gay character
in the show."¹¹⁴ Berman agreed, and adds: "[We) came up with a very
obvious metaphor for the gay community and the intolerance they receive
on this planet."¹¹⁵ Returning to the theme of the "better" Federation
person, above the fray and without conflict, Berman points out:

I think we dealt with well meaning people and their intolerance and our
people in the 24th century's absolute lack of acceptance of their
intolerance and the frustration of fighting it .... I think it did deal
with the issue of intolerance towards sexual orientation and it met
that objective well.¹¹⁶

Nevertheless, reaction was mixed.

We have people ... who salute us for doing it, then there are people that
say we didn't go far enough-that it was too subtle, it was too oblique and
wanted it to be more upfront, blunt and obvious. Other people were just
freaked out that it was an assault on values ....¹¹⁷

One commentator noted the similarities to The Host,¹¹⁸ but called the
earlier show "the more effective-and certainly most subtle-of the two."¹¹⁹
Another commentator noted that "[Jeri] Taylor's script is a stunning
reminder of how effective the science fiction genre can be in providing
allegorical explorations of political and social concerns."¹²⁰ Another stated,
"[while] the episode doesn't provide any solutions to society's intolerance
toward the homosexual community, [it) brings their argument to the
forefront, and that's at least a step in the right direction.¹²¹
As can be seen, the episode and the reaction to it raise interesting
issues. Given the comments of Frakes, Berman and Braga, did the show
actually avoid the hard issues which it could have confronted more
forthrightly? Did the show give in to the perceived contemporary intolerance
of the audience, rather than simply depicting the intolerance of an alien
race hundreds of years into the future? Given the controversial¹²² reaction

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to the episode, it is our view that the episode went just about as far as
it could go without being annoyingly heavy-handed. Unless an episode
entertains, the attempt to broaden the viewer's mind will fail, as the
message becomes more pervasive than the story.
     It should be noted that, in a rather humorous vein, the episode admits
that, even in the enlightened future of the 24th century, gender stereotyping
has not disappeared. Soren asks Crusher for characterization of our two
genders, and she notes that, while there used to be prescribed roles for
the two sexes, this has faded over time. Then, in a conversation with
Worf, she realizes that the ancient prejudices remain. Thus, even given
the weakness of STNG's first blow at exploding the myths of gender bias,
the series has succeeded in offering its condemnation of sexual stereotyping
in an effective one-two punch. Both The Host and Outcast will be
remembered by viewers as dramatically striking and morally compelling.
     Late 20th-century viewers are, in the main, trapped in a state of arrested
development with regard to sexual orientation. Noteworthy advances in
this area are marked by two strides forward, one step back. It is significant
that viewer response to these two episodes was vociferous, yet mixed:
Many fans applauded the courage of the latter episode, and many decried
the risk-avoidance of the former, but there were still viewers who felt
offended by the message in both. It is doubtful that the series could have
gone any further without alienating its audience and suffering critical
disaffection for sacrificing the story for the message.
     Thus, the message of tolerance is consistent throughout the Star Trek
world, even while it recognizes and causes us to realize that it is difficult
to break traditional stereotypes. If a message is to be drawn from the
series, and from these individual episodes, it may be that the effort is
not just worthwhile, but essential.
     From a legal point of view, the only thing wrong with the treatment
of the issue in Outcast is that the Prime Directive effectively prevents the
question from being considered in a legal way. The planetary government's
laws, although repulsive, are internal matters which the Federation may
not address. Since it was one of their own citizens they were "treating,"
there was no legal issue raised which could be addressed directly.

B. The Meaning of Life/Defining the Person

In a succession of episodes, STNG has expounded upon the question
of what it means to be "human" or a "person," i.e., to be entitled to
legal rights and autonomy. While this is a hotly debated issue in
contemporary society in the context of abortion,¹²³ STNG has asked the
question more generally and in a wide variety of contexts. It is one of
the most interesting continuing themes and one which often provides a
setting for legal resolution.

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STNG has attempted to define what is life under the various labels of
what is sentient life, what is intelligent life, and what life forms can be
considered property. The issues ranged from whether an image Data
encountered in the holodeck is entitled to existence (Elementary, Dear
Data) to whether Data himself (The Measure of a Man)--and later, Data's
daughter (The Offspring)--are. The problematic alien entities ranged from
the crystalline entity (Silicon Avatar) to a race known colloquially as
"microbrain" (Home Soil)¹²⁴ for their computer-like nature to a race of
nannites (Evolution). In the entire STNG oeuvre, however, one message
'is clear--the respect for all forms of intelligent life and the right of
intelligent life to self-determination.
Holodeck creations were the subjects of this inquiry in two very different
episodes which resolved the query in markedly different fashions. In the
first season's The Big Goodbye, Picard manages to convince the arch-
villain Cyrus Redblock, the Sydney Greenstreet-clone portrayed by
Lawrence Tierney, of the existence of a world outside the holodeck, yet
allows him to follow Picard outside the holodeck to his "death," or at
least to the end of his existence. Apparently, this was not a fitting end
for another arch-villain, Professor Moriarty, in Elementary, Dear Data.
There, the fate of the professor was seen as almost tragic. Moriarty
argues, comparing himself to Data, that both are alive because they are
both self-aware: "Cogito, ergo sum." "'Moriarty' ... the captain promises,
'you will not be extinguished. We will save this program and hopefully
in time, when we know enough, bring you back in a form which could
leave the holodeck.'"¹²⁵

Producer Maurice Hurley notes that there was some disagreement about
that ending.

[T]here was an ending cut off of that show by Gene. We had a large fight
about it. In that ending, Picard knew how to defeat Moriarty. He tricked
him. He knew all along that Moriarty could leave the holodeck whenever he
wanted to, and he knew because when Data came out and showed him a
drawing of the Enterprise, if that piece of paper could leave the holodeck,
that means the fail-safe had broken down. In turn, this means that the
matter-energy converter which creates the holodeck, now allowed the matter
to leave the holodeck, which was, up to that point, impossible. When he
knew that paper had left the holodeck, he knew that Moriarty could as well,
so he lied to him. The doctor says, "How could you lie to Moriarty?"
Picard basically says, "Well, after all, dear doctor, it is Moriarty, and until
we know whether he is saying what he's saying because that's how he really
feels or if it's more of his guile and deceit, it's best to be very safe with
this." It was better than I'm saying, but that whole rationale was missing.
Gene basically thought it made Picard look deceitful, dishonest and it hurt

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the character. I thought it made him look clever, and since you are dealing
with maybe the most profound criminal mind in literature, you've got to be
careful. ¹²⁶

     We are pleased that the alternate ending was not used. Nor was it
established that merely because an object could leave the holodeck a
computer created sentient being could. We stress this because we believe
the ending as actually aired was a much stronger message that sentient
beings have rights than the alternate ending would have been.
     The two episodes can be easily reconciled, however: Cyrus Redblock
was merely a facsimile created by and limited to the holodeck. He had
no self-awareness and was not, therefore, a being with rights. Professor
Moriarty, however, had been given self-awareness and the ability to
introspect due to the order given to the holodeck that it create an enemy
which could defeat Data. Only a sentient being would have any chance
to do so. STNG has established its position, through a number of shows,
that sentience is a key criterion for the right to life. Thus, Moriarty was
a being with rights as entitled to life as Data or Picard. Merely to dissolve
him was, therefore, no answer. Assuming that he could not leave the
holodeck and survive, as stated in the show, the option to save him in
the computer had to be taken. To merely turn off the program would
have killed him unjustly.
     STNG's inquiry into whether a being merits a right to life based on
whether it is sentient resounds with the philosophical tenet, "I think,
therefore I am." The question has ongoing legal implications in defining
not just life but death. If I never think and never will think, perhaps I
am not.
     Recently in Florida, the Supreme Court heard and decided a case which
directly tested this point. The so-called "Baby Theresa" case dealt with
an infant born anencephalic, without a brain, possessing a brain stem
only. Medically, such a child could live at most a few weeks. The higher
thought processes associated with human beings were impossible due to
the physical absence of the brain. The parents wanted to harvest Theresa's
organs and donate them to needy children. If they waited until brain stem
activity ceased, the organs would have deteriorated too much to be of
use to others. The infant's parents sought to have her declared dead so
that her organs could be harvested. Florida law, which "parallels the law
of all 42 states that have faced this question," defines brain death as the
cessation of all brain activity.¹²⁷

The law that defines death was enacted in 1980 in response to dramatic
advances in medical technology. Even if someone is breathing and
physically functioning with artificial life support, the law allows
a physician to declare

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the patient dead when the brain has ceased to function. The law allows
no such declaration if there is a functioning brain stem controlling
breathing and other functions..... ¹²⁸

Both the trial and intermediate appellate courts held that the baby was
not dead. On November 12, 1992, the Florida Supreme Court upheld the
lower courts' decisions.¹²⁹
     The question posed starkly was whether Theresa was dead even though
her heartbeat and some automatic functions controlled by the brain stem
continued. If sentience, or even the remote possibility of sentience, is the
criterion for human life, then Theresa does not and cannot qualify. Thus,
in thinking through this issue, STNG is addressing an important issue of
current law.
     Similarly, in Home Soil, a first season entry, a group of Federation
terraformers on Velara III was discovered to be violating the rights of a
preexisting race of beings. A planet to be terraformed "must be without
life or the prospect of life developing naturally." The Enterprise crew
discovers one of the indigenous entities and engages in an exploration of
whether the entity--microscopic in size and non-carbon based--is life.
Picard lists a set of criteria for organic life, including the ability to
assimilate, respirate, reproduce, grow and develop, move and secrete and
excrete, but notes no similar definition for inorganic life. The entity does
in fact reproduce and even threatens the ship, but Picard refrains from
destroying this race of beings, "intelligent life" as they have now been
found to be. Indeed, the "microbrains" decline to enter into relations
with humans, who they perceive to be "ugly bags of mostly water."
     Similarly, in the third season's Evolution, Dr. Paul Stubbs, played by
Ken Jenkins, is an erstwhile child prodigy seeking to reestablish his
noteworthiness with an experiment on a neutron star. This experiment,
to be performed aboard the Enterprise, is possible only every 196 years.
Unfortunately for Dr. Stubbs, Wesley Crusher accidentally releases a
science project into the ship's computer: two nannites, described as "little
tiny robots . . . designed to enter living cells to conduct repairs."130
Wesley's plan had been to "see how they would act in tandem," in effect,
as Guinan puts it, "to make better nannites." The nannites do very well
"in tandem," combining and reproducing to such an extent that the ship's
main computer starts to malfunction, placing Dr. Stubbs' experiment in
jeopardy. The nannites are said to have "evolved."¹³¹
     "How can a machine evolve?" an angry Stubbs argues,¹³² but Dr.
Crusher maintains that the nannites have a new collective intelligence. For

[75]

Stubbs, they may be life, but not the kind of life with rights. He challenges
Crusher with the question, "How many disease germs have you
destroyed?"¹³³ Picard insists that they cannot destroy something that may
be intelligent and orders Stubbs and Data to try removing the nannites
safely from the computer core; if that does not work, stronger measures
may be necessary. Stubbs is impatient and fires a high level gamma
radiation burst to try to destroy the nannites, which respond by attacking
Stubbs. Picard is reluctantly poised to give up his attempts at
communication, but just in time Data succeeds in establishing contact.¹³⁴
Data serves as conduit for the nannites, to which Stubbs is ordered by
Picard to apologize. The apology is accepted, and the nannites, for whom
life is too confining aboard one starship, are awarded a planet of their
own on which to exist.¹³⁵
This regard for intelligent life reached an acme--or, perhaps, a nadir--
in the fifth season's Silicon Avatar. Although this episode is consistent
with the other right-to-life episodes, it reached a level that some viewers
and critics found extremist and, as a result, almost amusing. In it, Picard
quarrels with Riker over the fate of the extraordinarily destructive crystalline
entity, which first appeared on the series in the first season's Datalore.
The entity has proven itself capable of destroying entire planets, yet Picard
refuses to destroy it when the opportunity for communication remains.¹³⁶
The episode was seen by some as portraying Picard at his most intellectually
ineffectual. Captain James T. Kirk would have blasted the crystalline
entity into nothingness (at which point Bones would, no doubt, have
noted, "He's dead, Jim").¹³⁷
If Silicon Avatar was the low point, critically speaking, in the debate
of what is life, The Measure of a Man is doubtless the zenith. It so well
answered the question of what is life that a later episode, The Offspring,
in which the question is asked not about Data but about his creation,
Lal, was seen by many as superfluous.¹³⁸ In The Measure of a Man, Data
is ordered to report to Commander Bruce Maddox for experimentation.
Maddox is "a gung-ho cybernetics expert [who] wants to disassemble
Data in order to learn more about his inner-workings,"¹³⁹ in an attempt

[76]

to reproduce Data for a wide variety of usage in the Federation and
Starfleet.¹⁴⁰
Data believes Maddox's plans are ill-conceived and decides to fight the
transfer. He is informed he has no such right. Dangerous assignments are
not valid bases for fighting transfer. His next choice is to resign from
Starfleet, and from there the battle is joined. Captain Phillipa Louvois
of the Judge Advocate General's Office orders a hearing on whether Data
is a sentient being at liberty to resign from Starfleet. Picard is designated
to defend Data, and Riker is unwillingly drafted to prosecute.¹⁴¹
Riker attempts to show Data is not human, i.e., that he was built by
a human (Dr. Noonian Soong), that he has superhuman strength and that
he can be disassembled and even "shut down" by a human, which Riker
proceeds to demonstrate. Picard tells Guinan of Riker's "devastating"
prosecution, and it is only when the bartender suggests that a race of
Datas would be nothing more than slave fodder for the Federation that
Picard is inspired. Guinan says:

[I]n the history of many worlds there have always been disposable creatures.
They do the dirty work. They do the work that no one else wants to do
because it's too difficult or too hazardous, And an army of Datas, all
disposable ... you don't have to think about their welfare, you don't think
about how they feel. Whole generations of disposable people.¹⁴²

In his opening speech, Captain Picard admits that Riker has proven
Data to be a machine, but argues that humans too are machines. This
concession, according to Picard, does not answer the larger question of
whether Data is property. Picard questions Maddox about the qualifications
for sentience: intelligence, self-awareness and consciousness. Maddox
concedes Data has at least intelligence and self-awareness, while the third
criterion remains in question. Picard then suggests that whatever decision
is made in that hearing would have enormous consequences for the future.
"Are we ready to consign an entire race of Datas to the status of
disenfranchised property?" Picard asks rhetorically.¹⁴³
Captain Louvois acknowledges that the question they are all "dancing
around" is whether Data has a soul.¹⁴⁴ Louvois admits she does not know

[77]

and does not, in fact, even know whether she herself possesses a soul. In
the absence of proof to the contrary, she declares herself unwilling to
find Data soulless, and therefore property. She finds in Data's favor, and
the android formally rejects Maddox's request.¹⁴⁵
Picard is again called upon to defend the right to life, as preliminary
to an android's right to choose, in The Offspring, another third-season
episode, which has been alternately praised as well done¹⁴⁶ and panned as
unnecessary.¹⁴⁷ In that case, it is Data's creation, his "daughter" Lal,
played by Hallie Todd. The threat this time comes from Starfleet Admiral
Haftel, portrayed by Nicolas Coster, who wants not to disassemble Lal,
but to take Lal away from Data for study and a "proper" upbringing.¹⁴⁸
Early in the episode, when Captain Picard discovers Data has created
the android Lal and calls it his "child," Picard, upset at the discovery,
tells Counselor Troi that it is "an invention," not a child. Troi replies,
"Why should biology rather than technology determine whether it is a
child?"¹⁴⁹ When Picard lectures Data that the latter's actions will have
serious repercussions, Data asks whether the captain wishes to have Lal
deactivated. "It's a life, Data," Picard says, "it can't be activated and
deactivated .... "¹⁵⁰
Following the test established in The Measure of a Man, Data notes
that Lal is becoming "sentient by developing the awareness to question
and examine [her] perceptions."¹⁵¹ Lal is again referred to as a "living,
sentient being" by Picard, who tells Admiral Haftel that "[androids']
rights and privileges have been defined. I helped define them,"¹⁵² in a
clear reference to The Measure of a Man. Yet it is by no means clear, in
this later episode, that Lal has a right to choose.¹⁵³ It is only after Lal's
rights have been discussed by the captain, crew and Haftel that Picard
finally asks Lal for her wishes, as if this is a new and surprising avenue
to pursue. Notwithstanding Lal's wishes to remain with Data, Haftel still
asks, then orders, Data to deliver Lal to Starfleet for research and
training.¹⁵⁴ Picard tells Data to "belay that order," telling Haftel that he,
Picard, will take the issue to Starfleet. "I am Starfleet," Haftel storms.
Picard says, "You acknowledge their sentience but you ignore their

[78]

personal liberties and freedom."¹⁵⁵ The issue then becomes moot as Lal
develops a terminal case of emotional awareness, leading to systems
failure, and "death."¹⁵⁶
     Perhaps the issue need not have been explored, even assuming for the
sake of argument it need have been raised, because of the resolution in
The Measure of a Man.
     While Lal was a well-defined character, and the show was excellently
directed by cast member Jonathan Frakes, the point of the episode was
so consistent with that of The Measure of a Man that it seemed superfluous.
Questions resolved in The Measure of a Man arose again in The Offspring,
seemingly for no other purpose than to propel the story. Because it was
a good story and because it adhered to the STNG tenets regarding right
to life, the episode was nonetheless a valuable entry in the series.
     A recent episode considering the right to life was the fifth season's I,
Borg, which considered the question almost as if The Measure of a Man
had never existed. In I, Borg, an away team discovers the crash site of a
Borg ship with one survivor, an individual Borg, which the crew realizes
is something of a contradiction in terms. Aboard the Enterprise, there is
a strong memory of the destruction and tragedy wreaked by the Borg in
the past;¹⁵⁷ Picard is still so shaken by his past abduction that he refuses
to see the prisoner.¹⁵⁸
     Soon, the prisoner becomes something of a guest, or even a pet, of the
Enterprise.¹⁵⁹ La Forge names him "Hugh" and, along with Dr. Crusher,
teaches him what it is to be an individual, separate and apart from the
Borg collective. The Enterprise plan is to program Hugh with a destructive
command to disable the Borg collective when Hugh is reassimilated by
his "People." However, somehow this plan becomes untenable, as La
Forge, then the reluctant Guinan (whose entire species had been devastated
by the Borg) and finally even the recalcitrant Picard conclude that this
would constitute murder, perhaps even the genocidal destruction of an
entire race. It is not until Picard realizes that Hugh has developed
knowledge of self, in effect, individuality, that Picard abandons the plan.¹⁶⁰
An argument could be made that exceptions for self-defense or war would
support the action, yet there are flaws with both of these theories. The
episode makes clear that there has been no formal declaration of war
against the Borg by the Federation Council. Further, while the Borg as a
group pose a terrible threat to the Federation, Hugh does not.

[79]

STNG's view of the right to life closely follows the Roddenberry view
of a utopian, egalitarian society. Even when we find that the show
sometimes "re-litigates" an issue that should be understood to be decided,
it does consistently come up with the same answer. All "born" sentient
life is precious, and even the decision to kill such a being in self-defense
is a decision fraught with moral ambiguity. It seems clear that so long as
communication and discussion are possible, i.e., that a chance exists for
reason to prevail, even self defense is viewed as premature. In this, the
24th century appears to take a view of self-defense that is significantly
more limited than that which the 20th century recognizes.

C. The Right to Privacy

For the most part, STNG has consistently reflected the contemporary
struggle with the privacy issue, while exhibiting a more advanced step
along the road to complete protection of privacy rights. In the 20th-
century perspective, the privacy rights may be said to be four-fold. The
four separate bases for invasion of privacy are: "unreasonable intrusion
upon the seclusion of another; ... appropriation of the other's name or
likeness; ... unreasonable publicity given to the other's private life; ...
[and] publicity that unreasonably places the other in a false light before
the public . . . "¹⁶¹ Several of these theories of liability have application
to STNG's treatment of privacy issues.
The most striking, and certainly most didactic, of the right to privacy
episodes is Up the Long Ladder, a second-season show written by attorney
Melinda Snodgrass. In this episode, a race of clones attempt to steal the
DNA of Riker and Doctor Pulaski in an effort to ensure their race's
survival. Riker and Pulaski had already objected to a request for the
DNA, and when they discover the deception, Riker destroys the clones
with a phaser blast. "We certainly have a right to exercise control over
our own bodies, "¹⁶² Riker argues. Snodgrass speaks about the episode:

It is ironic, because I got enormous flack from the right to life coalition
because they destroyed the clones .... They thought I was condoning
abortion. In fact, I did put a line in Riker's mouth that was very pro-choice
and the right to life coalition went crazy. He says I told you that you can't
clone me and you did it against my will, and I have the right to have control
over my own body. That's my feeling and it was my soapbox, and it was
one I got to get on.¹⁶³

The show suggests a strong right to privacy in one's physical person,
including but not limited to reproduction. STNG also presents privacy in
a broader context which considers whether a person can control his or
her image, likeness and personality. In the 20th century, such issues are

[80]

generally raised in the context of commercial appropriation of name or
likeness, but in the 24th century, advanced technology makes other kinds
of personal invasions possible.
     Several episodes explore the appropriation of one's likeness through use
of the holodeck, which has the ability to create corporeal three-dimensional
people closely patterned on real individuals. These episodes raise important
questions about privacy and freedom of thought. For example, in Hollow
Pursuits, the awkward, reclusive Ensign Reginald Barclay, nicknamed
"Broccoli" by the amused crew, escapes from the uneasiness of social
requirements and ship's duty by spending an inordinate amount of time
on the holodeck, where he creates characters who look like and sometimes
act like actual members of the crew.¹⁶⁴
     While some have seen this episode as a comment on "trekkies" who
escape from reality into the fantasy of the Star Trek universe,¹⁶⁵ more
fundamentally, it is a show about privacy. In numerous scenes, Barclay
reproduces facsimiles of his crewmates, including Picard, Riker, Crusher,
Troi and La Forge on the holodeck, putting them in embarrassing and
often ludicrous roles and situations. When the crew finds out, they are
outraged at the use to which Barclay is putting their likenesses without
their consent.¹⁶⁶
     Yet, it can be asked, how it is that we feel we can control the mental
fantasies which others might have about us? To do this is to control their
minds which violates their own autonomy and privacy. The holodeck is,
in one sense, just a 3-D corporeal computer enhancement of our thoughts.
Surely one's thoughts are private even if they involve others.
     It should also be noticed that the privacy issue is two-edged here.
"When Geordi violates [Barclay's] privacy by walking into this holodeck
fantasy, the issue of violation of privacy is never tackled by our holier-
than-thou crew. Sure, just walk right in on the poor guy. Good thing he
was only fencing with the Musketeers and not giving Pee-Wee a hand."¹⁶⁷
This would approximate a privacy invasion under the first ground:
"intru[sion], physical ... or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns . . . if the intrusion would be
highly offensive to a reasonable person."¹⁶⁸
     Another's holodeck fantasy may seem humorous rather than intrusive,
yet STNG also shows us that it may not be quite so humorous when we

[81]

are the "borrowed" image. In Hollow Pursuits, for example, Counselor
Troi, envisioned as the Goddess of Empathy, is empathetic with Barclay's
needs until she meets her own simulated alter ego. At another point,
Riker asks whether there is some regulation forbidding such use of the
holodeck. When told that there is not, he fumes "Well, there ought to
be."¹⁶⁹
     A potentially more serious invasion of privacy involving the use of the
images of crewmembers in the holodeck can be seen in Booby Trap, in
which La Forge is able to access the personnel file of Leah Brahms, the
designer of the engines on the Enterprise, in order to create not just a
visual image but one including very detailed and complete information
about the person replicated. His motive is good. Needing to work quickly
in a crisis situation, he finds it convenient to have the holodeck create
her image. Their interaction, however, becomes very personal, intimate
and romantic. La Forge is smitten.¹⁷⁰
     Interestingly, during a later episode, Galazy's Child, Leah Brahms visits
the Enterprise and stumbles upon the program. She is outraged at the use
of her computer-created self as a gross invasion of her privacy. "I have
been invaded, violated. How dare you use me like this? . . . How far did
it go, anyway? Was it good for you?"¹⁷¹ Eventually, Leah is won over
by La Forge, and the charge of violation of privacy is not again considered.
As with all of the holodeck episodes, there is an uneasy, unresolved
feeling that technology has outrun a clear resolution of the issue. Perhaps
this question will be explored again.
     In the previously discussed Up the Long Ladder, involving the theft of
cells from Enterprise crewmembers for the creation of clones, Riker
articulates his feeling that the cloning of his cells "diminishe[d] [him] in
ways [he] can't even begin to imagine."¹⁷² This echoed the point made in
The Measure of a Man that reproducing a race of "Datas" vitiates the
uniqueness of each person in effect, the ultimate privacy violation.
     From our perspective, these episodes create and perpetuate a view of
privacy that suggests every individual is entitled to live a life untrammeled
by other people's interference. One's body, mind and image are one's
own. Even when not protected in law, customary morality creates pressure
to preserve the privacy of others. Those who violate this privacy appear
to be confronted and generally acknowledge that they have done wrong.
Today, a cause of action exists for invasion of privacy by appropriation
of name or likeness for the defendant's benefit .¹⁷³ Usually this is economic,
but "[i]njury caused by an appropriation ... may ... be 'mental and

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subjective'--in the nature of humiliation, embarrassment and outrage."¹⁷⁴
It may be that such an action would be needed in the 24th century,
regardless of whether it is done for personal gratification or pecuniary
benefit, in order to take account of the increased ability to violate privacy
which the advanced holodeck technology creates.
In the episode entitled Violations, invasion of privacy is seen for the
first time as an actionable offense. This fifth-season episode was one of
the most powerful and effective of not just the fifth season, but of the
series' entire run. In this story, the Enterprise is transporting a delegation
of Ullians, "an alien race of telepathic historians who conduct research
by probing their subjects' long forgotten memories."¹⁷⁵ Counselor Troi
and then Commander Riker fall into inexplicable comas; initially, only
the audience is privy to their thoughts before they lose consciousness.
Each of the two crew members experiences violent flashbacks, Troi to
a romantic incident with Riker that then turned ugly, and Riker to a
stressful ship disaster wherein lives were lost, impliedly because of a
command decision he had made. When Troi regains consciousness, we
learn that one of the Ullians has invaded her thoughts and altered the
memory for her.

You have to make sure you don't misinterpret what this guy was doing ....
He was basically going into your memories and playing in them for his own
amusement, pleasure and fulfillment. He was not going in and exploring
any character's greatest fear. He might go in and feel that today he
wants to see Troi's sexual secrets and tomorrow he may want to see
Riker's unhappiest memory and see him suffer.¹⁷⁶

When the wrongdoing is discovered, the other, apologetic Ullians explain
that many years earlier this type of mind rape had been a particularly
heinous crime among their people. It had been believed that the species
had evolved beyond the need to commit such a crime, but apparently this
was not so. In the 20th century, the invasion "may ... be by the use of
the defendant's senses ... to oversee or overhear the plaintiff's private
affairs."¹⁷⁷ By extension, therefore, the use of extrasensory abilities--from
the Ullians' ability to recreate memories to Counselor Troi's ability to
sense emotion--could constitute an invasion of privacy.¹⁷⁸
This episode represents what STNG and, indeed, all of Star Trek does
best: taking a meaningful social, legal, political or philosophical issue and

[83]

elucidating it by giving it a science fiction twist. It is only when viewed
through the prism of fiction, and especially science fiction, that people
are sufficiently distanced from the problem to see the "moral" of the
story. Thus, as Outcast throws new light on gender discrimination,
Violations offers a new perspective on crimes (and by implication, civil
causes of action) impinging on a person's freedom--in this instance,
freedom of thought.

V. CONCLUSION

     STNG presents an interesting example of a legal system which is both
a logical extension of the 24th century portrayed in the show and
significantly different from our own. In particular, the dual track system
demonstrates serious concern about human rights while attempting to
move away from formalistic procedures. The system, as portrayed, relies
heavily on the evolved goodness of the people involved and on informal
mechanisms of dispute resolution. It does not appear that the informal
part of the 24th-century system always functions as well as would be
expected either to arrive at accurate factual findings or to protect individual
rights. Further, the problem appears to be an aspect of the informality
of the system which continues to exist even when evolved people act in
good faith.
     Within the context of the show, accurate fact-finding and the correct
resolution of disputes seem to be aided by some structure of formal
procedural safeguards. Those who decry the formal nature of the 20th-
century legal system may fail to fully recognize the positive aspects of
such a system.
      STNG generally handles issues of legal procedure well. The system
portrayed is inventive, challenging and largely consistent with the 24th
century as portrayed on the show. Yet, some issues, such as jurisdiction
and choice of law, require some additional development.
     STNG also examines substantive legal questions. Issues such as sexual
orientation, gender equality, the right to life, the definition of "person"
and privacy, have all been considered. In general, there is strong support
for the notion that a sentient creature has rights, including life, liberty
and privacy. The control of one's person and personae is an important
value. In general, we find that the substantive law is consistent with the
more general vision of the 24th century portrayed in the show. We also
note, however, that just as these questions cause controversy in the 20th
century, their resolution is not always clear in the 24th.
     Finally, we want to acknowledge that the makers of STNG are primarily
concerned with creating and producing a high-quality television
entertainment program. They did not set out to produce a treatise or
documentary on government and law. It is their outstanding success in
creating a believable and creative vision of the future which led us first
to watch the show with such pleasure and then to think and write seriously
about the legal issues discussed herein.

[84]

We have not, in every instance, agreed with the details of the future
they present. For example, we think that procedural formalities can play
a larger part in insuring substantive justice than the STNG legal system
might suggest and that lawyers may not be such a bad idea, even in the
future. This is not intended, however, to be a criticism of the show's
overall believability and high quality. More fundamentally, nothing in our
analysis challenges the core vision of the show. STNG presents a provocative
and emotionally compelling vision of a positive and hopeful future in
which all kinds of people can learn to live together in harmony, to care
for and respect each other and to allow each individual to pursue his or
her hopes and dreams with dignity. It is a vision of the future to which
we subscribe.

[85]

ENDNOTES

* The authors, who are Professors at the Shepard Broad Law Center of Nova
University, would like to thank Co-Executive Producer Jeri Taylor, Production
Associate Terri Martinez, Mr. L.H. Joseph, Jr., Professor Michael Richmond
and student research assistants Richard DeBoest and Shelley Zabel for their
assistance. Star Trek, Star Trek: The Next Generation, and U.S.S. Enterprise
are Registered Trademarks of Paramount Pictures Corporation.

1. "After a quarter century, Star Trek has become a permanent fixture in
America's cultural landscape." Charles Paikert, After 25 Years, Still ...
Cruising at Warp Speed, Variety, Dec. 2, 1991, at 49 [hereinafter Warp Speed].
In another article in the same issue, Paikert called Star Trek a "cultural
icon." Charles Paikert, Gene Roddenberry: American Mythmaker, VARIETY,
Dec. 2, 1991, at 49, 62 [hereinafter Mythmaker].

2. Only massive letter-writing campaigns saved the show from earlier
cancellation.

3. All but one of the films made money in theatrical release. A brisk video
rental market exists. " We've sold about 10 million units, and our numbers have
been remarkably steady over the years,' says Alan Perper, senior VP of marketing
for Paramount's video division. Our core audience has grown. Each new film and
the new TV show build a connection; they inspire people to go back."' Stuart
Miller, No Skid on Homevid for First Four Flicks, VARIETY, Dec. 2, 1991, at 56.

4. "In 25 years, the saga has spawned well over 100 titles and over 30 million
copies in print. And interest in the books is peaking. In 1991 alone, Simon &
Schuster's Pocket Books division, a unit of Paramount Communications and the
sole publishers of " Star Trek" books since 1979, has sold about four million
copies of old and new titles."
    ....
    "When they first appeared in 1988, the "Next Generation" titles sold less
well than books based on the original series.... But now, with five million
copies in print, the "Next" titles are just as popular."
   William Stevenson, Fans Devour Books with Trek Hook, VARIETY, Dec. 2,
1991, at 52.

5.   "From chess sets to comic books, from T-shirts to computer programs, from
recordings to disappearing-ink mugs, Trek merchandise is selling briskly-spurred
by the fanaticism of Trekkers, the seemingly indestructible popularity of the
show, and the hype and hoopla surrounding the 25th-anni promotions.
    According to Jim Arnold, administrator of corporate communications at
Paramount Pictures, which issues official licenses to merchandise manufacturers,
some $ 500 million has been spent to date on Trek goods. Paramount has licensed
35 companies to pump out trek items, Arnold says, and additional firms may be
signed up in the future."
   Jay Blickstein, Trek Merchandise Sales Beaming Up, VARIETY, Dec. 2, 1991, at
54.

6. See Warp Speed, supra note 1, at 49.

7. The first parody, featuring John Belushi as James T. Kirk and Chevy Chase
as Mr. Spock, aired in 1976. The sketch takes place on the Star Trek set as an
NBC network executive, played by Elliot Gould, comes to tell the cast that the
show has been canceled. The cast, completely caught up in their roles and not
realizing that they are actors in a television series, react as you might
expect. A draft script for the sketch and a copy of a letter from Gene
Roddenberry calling the sketch "delicious" appears in SATURDAY NIGHT LIVE
(Anne Beatts & John Head eds., 1977). The second parody featured guest William
Shatner, playing himself, speaking at a Star Trek convention at which he tells
trekkies to "get a life."

8. A recent article noted that, while ratings for many syndicated shows are
down, ratings for STNG continue to be strong. Bill Carter, Syndicated Shows
Sagging? You Bet Your Life, N.Y. TIMES, Oct. 26, 1992, at C6.

9. The early publicity for the series outlines the premise, setting and
characters, but does not detail any treatment of law or legal issues. See Mark
Altman, Star Trek: Deep Space Nine, Spin-Off Series Preview, CINEFANTASTIQUE,
Oct. 1992, at 80. The possible exception to this is a Bajoran constable who, in
the words of Michael Pillar, will "take the law into his own hands[.]" Id. at
82.

10. Star Trek's creator died on October 24, 1991. George Ramos, Gene
Roddenberry, Creator of Star Trek, ' Dies at 70, L.A. TIMES, Oct. 25, 1991, at
A3.

11. "Above all, the team works to Gene Roddenberry's plan. Dorothy Fontana,
story editor on Star Trek, once said-and this is an important clue to why Star
Trek worked-"when Gene wasn't available and we had a problem that had to be
solved, we tried to ask ourselves, How would Gene do it?"'
David Gerrold, THE WORLD OF STAR TREK 203 (1973).

12. Mythmaker, supra note 1, at 49, 62.

13. Rick Berman may be to Star Trek what Michael Eisner is to Disney. Both
have had to develop and diversify their properties in new directions while also
keeping faith with the memory and vision of high-profile pioneers. "While many
still associate late Star Trek creator Gene Roddenberry as the name behind
Next Generation, it has actually been Berman who successfully molded the series
into one of the highest-rated hour dramas on television." Mark Altman, Rick
Berman, Trek's New Great Bird, CINEFANTASTIQUE, Oct. 1992, at 36 [hereinafter
Great Bird]. "Berman has taken on Roddenberry's vision and made it his own."
Mark Altman, The Next Generation: Rick Berman, Production Mogul,
CINEFANTASTIQUE, Oct. 1991, at 18. See also Mark Altman, The Next Generation:
The Power Behind the Throne, CINEFANTASTIQUE, Sept. 1990, at 31.

14. "The key element for success for Berman is maintaining the show's
philosophical bent." Mark Altman, Science Fiction's First Franchise, Star
Trek: The Next Generation, CINEFANTASTIQUE, Oct. 1992, at 32, 59-60.

15. "The goals for the show are set by Rick Berman, who outlined his mandate
for the writing staff. "Foremost, Star Trek has got to be entertaining," said
Berman. "Secondarily, it has to be true to Gene Roddenberry's vision of the 24th
century. That's something we bend and twist a little bit but basically I'm
obsessive about it. Then the show has to deal with character and it's got to
deal with ideas which very often fall into the realm of contemporary issues.
Star Trek at its best is good allegory."
Id. at 59.

16. In 1991, Star Trek: The Next Generation was selected as one of the 25
best series by Viewers for Quality Television and as one of the 15 best shows in
a poll of television critics. Viewers' Group Poll Picks Its Top Dozen Quality'
Shows, MIAMI HERALD, Nov. 27, 1991.

17. For a dissenting view, see Melinda Snodgrass, Boldly Going Nowhere?,
OMNI, Dec. 1991, at 14, 52.

18. "Over the last three years, "Next" has continuously averaged a powerhouse
10 rating, making it by far the most popular weekly series in first-run
syndication. Its 11.6 season-to-date household rating so far this year is higher
than at any other comparable period in the previous four years, allowing
Paramount to charge $ 100,000 for a 30-second national spot.
Ad-agency sources say no other syndicated series charges that much for a
national spot, not even King World's high-rated game show strips 'Wheel of
Fortune' and 'Jeopardy.'"
John Dempsey, TV's Syndie Smash, VARIETY, Dec. 2, 1991, at 50.

19. " During its network run, I was always flirting too closely with saying
things; I had to give up many points just to keep the small audience the show
did have."' David McDonnell, STAR TREK 25TH ANNIVERSARY SPECIAL 8 (1991)
(quoting Gene Roddenberry).

20. "The right kind of story is one that interests today's audience despite
its 24th century setting." Gene Roddenberry, STNG Writers/Directors Guide 2 (3d
season, Aug. 1989) [hereafter WDG], 1989, Paramount Pictures Corporation, Inc.
All rights reserved. Quotes used with permission. "Whatever the time frame of
dramatic stories, in the end they are all about today!" Id. at 3.

21. "SHOW A SOMEWHAT BETTER KIND OF HUMAN THAN TODAY'S
AVERAGE. Our continuing characters are the kind of people that the STAR
TREK audience would like to bethemselves. They are not perfect, but their
flaws do not include falsehood, petty jealousies and the banal hypocrisies
common in the Twentieth Century."
Id.

22. " [STNG] will hopefully create something that will live on in the
future, which is a way to look at ourselves through these characters, to see our
possible failings and strengths."' Edward Gross, Writer Richard Krzemien-Beyond
"The Last Outpost", STNG MAG., Mar. 1988, at 18, 20 (quoting Richard
Krzemien, who wrote the episode "The Last Outpost").

23. "Gene has a pretty optimistic view about our progress, which I tend to agree
with. I don't feel that the human race is crazy enough, foolish enough or
ignorant enough to blow itself to pieces. We're going to be here for a long
time to come. I know that Gene Roddenberry holds that point-of-view. He feels
we're eventually going to evolve into something better, and that the phase we're
going through-a phase that the human race has gone through before-will pass and
we will again reach a more concerned outlook on life."
Edward Gross, Marina Sirtis-Counselor Deanna Troi, STNG MAG., Mar.
1988, at 50, 51 (quoting Marina Sirtis).

24. The most detailed presentation involves the space service, "Starfleet,"
but the structure and culture of Starfleet inevitably reflect more general
facets of 24th-century life.

25. "There is a mystery at the heart of Star Trek, that touches people. It's
composed of elements like hope, optimism, companionship, comradeship and
courtesy, legitimacy and boldness. It lies in this assurance, which can only be
a theoretical assurance, that we're going to survive-that some of us will make
it."
Patrick Stewart Interview, PLAYBOY, Nov. 1992, at 139.

26. " Many people just watch a TV show for entertainment, but if you're so
inclined, you'll see the message in [STNG]."' Gross, supra note 23, at 51
(quoting Marina Sirtis).

27. " It's an optimistic series. Star Trek not only says the human race is going
to make it, but that we're going to make it in a very civilized way. Looking
different and being different will be OK. We won't interfere with the evolvement
of other peoples and civilizations. These are not warships going out, but
spaceships exploring for new life, furthering the ideas of humanity."
McDonnell, supra note 19, at 8 (quoting Gene Roddenberry).

28. "There has been no formal development of the issues of law in the 24th
century; we have approached each legal incident on an individual basis, and have
been guided largely by our interpretation of Gene Roddenberry's vision of the
future." Letter from Jeri Taylor, Supervising (now Co-Executive) Producer, STNG
(Feb. 3, 1992) (on file with authors).

29. While the exact way in which law and culture interact may be subject to
debate, it seems to us that an extensive body of writing in legal philosophy,
inclusive, at a minimum, of historical and sociological jurisprudence as well as
legal realism and critical legal studies, combine to make the claim that some
relation exists no longer controversial. See generally Roger B.M. Cotterrell,
THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO LEGAL
PHILOSOPHY (1992).

30. It is not our claim that there is a one-to-one correspondence between
every aspect of a present-day culture and its legal system. A legal system is
not updated weekly in response to cultural change and the process by which law
and culture interact is complex. Concerns about stability and continuity in law
may impede rapid change.
The medieval writ system, for example, continued long after its usefulness
was hard to justify. The separation of law and equity courts lingered on in at
least one state until quite recently. Just as our legal system may continue to
contain some doctrines or practices which seem to have no more justification
than a long history, the 24th-century legal system can be expected to retain
some outdated traditions from earlier times.

31. WDG, supra note 20.

32. All dialogue quotes from episodes of STNG are from the televised
version. We use the following citation format: STNG, Episode Title, episode
number (original airdate). The episode number and original airdate information
are taken from Edward Gross & Mark Altman, NEW VOYAGES: THE NEXT
GENERATION GUIDEBOOK (1991) [hereinafter NEW VOYAGES] and Mark Altman
& Edward Gross, NEW VOYAGES II: THE NEXT GENERATION 5TH SEASON
GUIDEBOOK (1992)[hereinafter NEW VOYAGES II].

33. The roots of this system can be traced to medieval trials by battle and
the view that God would give victory to the righteous.

34. The complexity of the system which results makes it almost impossible to
plead one's own cause. Only a trained lawyer knows enough about our complex
formalistic system to adequately present a litigant's case.

35. In STNG: Encounter at Farpoint, No. 1 (Sept. 26, 1987), the character of
"Q," a powerful being played by John deLancie, prosecutes all of humanity
through its "class representatives," senior members of the Enterprise crew. Q
replicates a trial from the year 2079 during the "post atomic horror." The
system of law during this period is explained in an exchange between Q and
Picard:
   Q: "Legal trickery is not permitted. This is a court of fact."
   Picard: "I recognize this 'court' system as the one that agreed with that line
from Shakespeare, kill all the lawyers."'
   Q: "Which was done."
   Picard: "Leading to the rule guilty until proven innocent."'
   Q: "Of course, bringing the innocent to trial would be unfair."

36. WDG, supra note 20, at 51.

37. "Money no longer exists. There are whole new standards of value. The
transporter [sic] can make almost anything one needs." Id. at 41. For those
interested in Star Trek technical consistency, it should be noted that the
Writers and Directors Guide is in error here. Star Trek uses the transporter
to move and reassemble but not to create matter. A replicator device based on
the same technology would be used to create matter from energy and is used, for
example, to create food and drink on command. See Letter from Jeri Taylor,
Co-Executive Producer, STNG (June 29, 1992) (on file with the authors)
[hereinafter Taylor Letter].

38. "[Earth has] a literate and compassionate population that has learned to
appreciate life as a grand adventure." WDG, supra note 20, at 51. "Our
continuing characters are the kind of people that the Star Trek audience would
like to be themselves. They are not perfect, but their flaws do not include
falsehood, petty jealousies and the banal hypocrisies common in the Twentieth
Century.... Regular characters all share a feeling of being part of a band of
brothers and sisters." Id. at 3. "Most 24th Century humans believe that Life
should be lived, not postponed." Id. at 41. "The crew members of the
Enterprise are intelligent, witty, thoughtful, compassionate, caring human
beings. They do have human faults and weaknesses, but not as many or as severe
as in our time.... We should see in them the kind of people we aspire to be
ourselves." Id. at 32. "Today, Starfleet Command is puzzled that the concept of
human engineering was not practiced centuries ago when giant business
corporations began appearing." Id. at 18.

39. STNG: The Drumhead, No. 94 (Apr. 29, 1991).

40. "I won't treat a man as a criminal unless there is cause to do so." Id.
(Picard).

41. "On the advice of my counsel I refuse to answer that question in that
the answer might serve to incriminate me." Id. (Tarses).

42. "The Seventh Guarantee is one of the most important rights granted by
the Federation. We cannot take a fundamental principle of the Constitution and
turn it against a citizen." Id. (Picard).

43. STNG: The Measure of a Man, No. 34 (Feb. 11, 1988) [hereinafter
Measure]. In a striking speech from The Drumhead, Picard reminds us of an
earlier more barbaric time. "Five hundred years ago military officers would
upend a drum on the battlefield. They'd sit at it and dispense summary justice.
Decisions were quick, punishments severe, appeals denied. Those who came to a
drumhead were doomed." STNG: The Drumhead, supra note 39 (Picard).

44. The original Star Trek series, while sharing these broad outlines,
portrays a somewhat more formalistic legal structure than that seen on STNG. For
example, in Court Martial, Captain Kirk is represented by a lawyer, Samuel T.
Cogley, played by Elisha Cook Jr., who in some ways acts very much like a lawyer
would in the 20th century. The trial scenes in that episode, as well as in The
Menagerie, have a more formal feel than similar scenes in STNG. This would be
consistent with the idea that the legal system is evolving from more to less
reliance on formalism and procedural devices.

45. "Trust, fairness, harmony, mutual responsibility-inform much of the
behavior of our characters, and it would follow that the legal procedures they
employ would derive from those same precepts." Taylor Letter, supra note 37.

46. STNG: A Matter of Perspective, No. 61 (Feb. 10, 1990) (Krag)
[hereinafter Perspective].

47. Id. (Picard).

48. Id.

49. Id.

50. It is likely that one invoking such procedures would be thought a little
odd or something of a throwback unless the reason for doing so was apparent. In
fact, it is likely that lawyers and judges, while useful at times, are also a
bit suspect as relics of a less enlightened, less trusting and less humanistic
time. Thus, in The Measure of a Man, Picard's assessment of Phillipa Louvois,
the head of the Judge Advocate General's office in sector 23, is that she has
"always enjoyed the adversarial process more than getting at the truth."
Measure, supra note 43 (Picard).

51. It may be that an analogy can be drawn to the concept of "consensus" as
practiced by the Society of Friends, sometimes known as "Quakers." As we
understand the concept, decisions require consensus, that is, unanimity. Even
one dissenting voice can block the decision. At the same time, once the majority
will is clear, each individual will feel morally responsible not to break
consensus without a very serious reason. Thus, it could well be that a person
would say, "I disagree, but will not block consensus." Such a system requires
that the deeply held views of others be taken seriously just as it requires each
individual to consider his responsibilities to the group process rather than
just to himself. Professor Mike Sells, of the Haverford College faculty,
generally confirms, from his own experience, our description of the working of a
consensus based system. Telephone interview with Professor Mike Sells (Nov. 24,
1992). Similarly, in the 24th-century legal system, any party can invoke formal
procedure but would not be willing to do so merely because he or she did not
like the outcome of more informal adjudicatory methods.

52. The formal hearing employed in Measure, supra note 43, provides a model
for such a formal hearing. A JAG officer presides, lawyers are used unless
unavailable, in which case senior officers are substituted, formal objections
and evidentiary rulings are made, cross examination is permitted, and a witness
may be called as "hostile," allowing a more intensive type of questioning, and
opening and closing statements are permitted.

53. It is likely that centuries of historical precedent, which are only
slowly giving way to 24th-century sensibilities, mean that, by custom, certain
very serious events still trigger the historical formal procedures. Thus, in The
Measure of a Man we learn that "a court-martial is standard procedure when a
ship is lost." Measure, supra note 43. It may well be that by the 25th or 26th
centuries such a procedure will not be standard, but will be invoked only in
extraordinary circumstances. Such is the process of social and cultural
evolution.

54. The Drumhead, supra note 39.

55. Id. (Picard). As will be seen shortly, however, when STNG uses the term
"counsel," this is not necessarily synonymous with "lawyer."

56. Id. (Picard).

57. Id. (Tarses).

58. Id. (Picard).

59. Id.

60. "Here are Starfleet's transfer orders separating Commander Data from the
Enterprise, and reassigning it to Starbase 173 under my command." Measure,
supra note 43 (Maddox).

61. Id.

62. "Captain, I believe his basic research lacks the specifics necessary to
support an experiment of this magnitude." Id. (Data).

63. Id. (Picard).

64. Id. In the 20th century, it would be unthinkable that this sort of
dispute could proceed so far before anyone felt it necessary to look up the
controlling law.

65. Id.

66. Id.

67. Id. (Picard & Louvois).

68. Id. (Louvois & Picard).

69. Melinda Snodgrass, who wrote the script for The Measure of a Man, and
who was, for a time, a member of the STNG staff, says that it was Gene
Roddenberry's view that lawyers would not exist in the 24th century. Telephone
Interview with Melinda Snodgrass, scriptwriter, The Measure of a Man (Apr. 6,
1992) [hereinafter Interview].

70. This is so both because procedure is generally simple (the computer can
be consulted for procedural guidance when necessary) and because the proceeding
tends to be less adversarial than in the 20th century. Each side is interested
in determining what is true and just, not merely in winning; thus, questioning
tends to be more straightforward, generally any relevant information is
admissible, parties and witnesses can make statements in addition to answering
questions and the rhetorical devices of lawyers have a minimized role. It would
also be likely that, as part of a good basic education, most people in the 24th
century would have received training in logical argumentation sufficient to
present their case in a competent manner.

71. Note, however, that it appears that the captain/senior officer is to
apply local law and procedure in such cases unless there is good reason not to
do so. Examples of the interplay between the captain's authority and
responsibility include A Matter of Perspective, Devil's Due, and Justice. We
discuss the issues of jurisdiction and choice of law in III(C).

72. In Perspective, supra note 46, Picard initially indicates that it would
not be proper to talk with Riker about the charges against him. Krag has accused
Riker of murder. Shortly thereafter Riker asks, "Captain, may I have a word with
you?" and Picard answers, "Under the circumstances, Number One, I think that
would be inappropriate." It must be remembered, however, that Krag has just
challenged Picard's fairness and has with difficulty accepted Picard as the
decisionmaker. Thus, it is likely that Picard is "bending over backward" to
demonstrate fairness, rather than applying a rule of procedure. It should be
recalled that Picard has just come from a meeting between himself and Krag at
which Riker was excluded. If formal procedures had been invoked, that meeting
would also have been improper.

73. The idea that fundamental change in the structure of society will alter
the character of the human beings who comprise it is not new. For example, in
the old Soviet Union, on the occasion of the implementation of the 1977
"Brezhnev Constitution," one commentator noted that the "expansion [of the scope
of national planning] can be ideologically justified on the basis of the social
engineering (i.e., the development of the new Soviet man and communist morality)
necessary for the building of communism, the stated preoccupation of the mature,
developed socialist society of the Soviet Union." Bernard A. Ramundo, The
Brezhnev Constitution: A New Approach to Constitutionalism?, 13 J. INT'L L. &
ECON. 41, 46 (1978). Socialist doctrine held that, with the evolution of an
ideal Soviet citizen, the state would be able to adapt and eventually wither
away.

74. Such an image of our legal system is not new.
"The irony so effectively exploited by Dickens in Bleak House is that the
court of conscience had become the nation's worst example of legal abuses. This
made it the perfect target for a moralist who believed (very much in the spirit
of the Romantic movement) that institutions pervert the inborn goodness of
people."
Richard Posner, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 131
(1988).

75. One continuing theme of legal theory has been the question of judicial
discretion. While legislators are expected to make rules based on their own best
judgment of what is good for society generally (in a representative form or
government, it might be argued that this is what we hire such folks to do),
judges are not. Rather, judges are supposed to decide particular cases in
conformity with pre-existing legal rules. Fear of the consequences of judicial
discretion is embodied in Legal Formalism, the doctrine that judges do not make
law, but merely "find" it in the pre-existing seamless web of the common law.
See Joseph Horovitz, LAW AND LOGIC 123-33 (1972) (discussing formalism and
critiques thereof).
Much of modern legal theory has been dedicated to the task of demonstrating
that Legal Formalism is wrong-that legal rules do not and cannot control legal
decisions. From Legal Realism onward, the point has been made that judges have
discretion whether we like it or not. They make new ex post facto laws in every
case and are seldom if ever truly bound by prior precedents and rules. There is
always a way around the rules, say the skeptics, because neither the rules nor
the facts are ever really clear in their meaning. What appears to be the
following of a clearly applicable legal rule is, in reality, merely the
selection of one of two opposite but both logically applicable rules. It is the
basis of the selection which we should examine.
This philosophical approach has been applied to argumentation about almost
every modern controversy, including those involving fundamental constitutional
rights. If, for example, the First Amendment has no real meaning (since no rule
of law can have any objective meaning), it becomes possible to argue that "hate
speech" has no protection under it. What had appeared to be a fundamental rule
protecting rights becomes no more than a dominant political power imposing its
perspective and subject to rejection should political power change. Thus,
questions about the nature and importance of rules have relevance throughout the
legal arena.

76. "We know well that people's prejudices, training, and social position-the
movements in which they are caught up and the ideologies linked with
these-strongly influence their consciences and their speculations. Whether we
consider this a merit or a demerit depends upon our judgment of the judges, and
particularly upon comparative judgments we make between them, the legislators,
and the holders of executive office. Which of these three, with their
characteristic methods and the influences to which they are exposed or from
which they are sheltered, are the more to be trusted with the opportunity for
partly independent decision in the making and remaking of the law? Should we
give up some certainty and determinacy about what the law is, and some freedom
for legislators to decide what it shall be, in order to give greater weight to
what judges will see as people's rights or just claims? I do not know what
answer to give, but I want it to be clear that this is the choice."
John Mackie, The Third Theory of Law, 7 PHIL. & PUB. AFF. 3, 16 (1977),
reprinted in Joel Feinberg & Hyman Gross, PHILOSOPHY OF LAW 181, 187 (4th ed.
1991).

77. See supra notes 29-30 and accompanying text.

78. Perspective, supra note 46.

79. For an article using this episode as a starting point from which to
discuss the use of re-creations in court, see Robert D. Brain & Daniel J.
Broderick, Demonstrative Evidence: The Next Generation, 17 LITIG. MAG. 21
(1991).

80. Id. In the absence of beings with empathic abilities, the holodeck
procedure would have been even more uncertain since there was no attempt
made to use it to decide who was telling the truth. That determination was left to
Counselor Troi. Yet, it is likely that the holodeck could have been used in a
more proactive fashion. For example, the computer could have been asked to
compare the various depositions, find whatever discrepancies exist and
extrapolate its own best theoretical estimate of the actual truth.

81. "Captain, I have established motive, method and opportunity. In any
court in the Federation, that is sufficient to warrant the extradition of the
accused." Perspective, supra note 46 (Krag to Picard).

82. Id.

83. In STNG: The First Duty, No. 119 (Mar. 30, 1992), a court martial-type
inquiry of Wesley Crusher and others is held at Starfleet Academy after the
crash of their squadron's ships kills a student. The procedure looks, on the
face of it, like a formal hearing, but really it is not. The youths do not have
counsel, and cross-examination does not take place. Although "depositions" are
taken and the youths are questioned by the hearing officers, they are mostly
permitted to present their stories through narratives supplemented with computer
data. At the conclusion of the hearing there is suspicion but no proof that
Wesley and the rest have lied. While the refusal to condemn on suspicion alone
demonstrates a concern for the human rights of the accused, we would also
suggest that more rigorous examination, in the style of a 20th-century
proceeding, might have uncovered the increasingly thin tissue of lies. Of
course, they could have refused to testify had they wished to invoke that right.
It should be noted that Wesley eventually comes forward and tells the truth
through a combination of his growing guilty conscience and strong pressure from
Picard, who has independently discovered the truth and threatens to come forward
himself if Wesley does not. Thus, we again see that the truth is discovered
through a means other than the normal working of the 24th-century legal system.
An effective fact-finding process is clearly necessary since the show
establishes that people of the 24th century can and do lie. Wesley's companions,
for example, showed no sign that they were likely to tell the truth of their own
accord, and Wesley does so only when exposure is certain anyway.
Parenthetically, since we assume that the black mark on his record would
foreclose Wesley from obtaining a plum assignment such as the Enterprise after
graduation, we wonder if he might find himself instead assigned to the Starbase
home of Deep Space Nine.

84. It may be a cliche that "the person acting as his own lawyer has a fool
for a client," but cliches, by definition, develop because of the continual
repeating (and eventual loss of emotional impact) of a statement containing a
core of truth. We are often too emotionally involved in our own situation and
our view of events to understand that others may see things differently. We may
lack the emotional detachment and objectivity needed to convince neutral
decisionmakers. This seems to be true in the 24th century as much as in the
20th.

85. Another episode, STNG: Devil's Due, No. 86 (Feb. 4, 1991), deals with a
contract signed 1,000 years previously by the people of Ventax II. Under the
terms of the contract, a metamorphing devil figure, Ardra, agreed to provide
1,000 years of peace and prosperity. In return, Ardra would become the absolute
master of Ventax II when the 1,000 years expired. The episode considers whether
the being presenting herself as Ardra is in fact Ardra and whether the terms of
the contract were fulfilled by her.
To the extent that informal means of resolution can be said to have been
tried, they were unsuccessful. When the law of Ventax is researched, however, it
is discovered that, because the case involves a dispute with a non-Ventaxan, a
formal arbitration procedure can be invoked. With Data acting as judge (selected
by Ardra), Picard presents the case that the contract has not been fulfilled
and that Ardra is a fraud. Eventually, evidence is introduced which unmasks
Ardra as a fraud.
Note that in both Devil's Due and A Matter of Perspective the key evidence is
discovered by the crew of the Enterprise. The difference is that, in Devil's
Due, the crew is mobilized by Picard to deal with the issue at stake in the
arbitration. In A Matter of Perspective, a shell-shocked Riker does not
instigate the investigation. Rather, seemingly independent problems on the ship
lead to investigations which are eventually found to also prove Riker's
innocence.

86. A humorous comment on all of this, but one which demonstrates that
formal procedure can be used to resolve disputes with intransigent adversaries,
can be found in STNG: The Ensigns of Command, No. 49 (Sept. 30, 1989), in
which Picard comes into conflict with the Sheliak, a race of beings so formalistic
and unyielding that no resolution seems possible. The only prior contact between
the Federation and the Sheliak took place during the negotiation of a 500,000
word treaty. The Sheliak may be intended to portray our worst nightmare of the
lawyer caught up in legal formalism. Yet, formalism also provides the answer when
all else has failed. Picard tries every way he can imagine to resolve his problem
with the Sheliak until, late in act five, he finally decides to read the treaty,
in which he finds a clause which allows him to prevail.
Yes, the Sheliak are absurd, but they are also an example of the type of
adversary with whom informal dispute resolution procedures are unlikely to work.
They do not care about fairness or how nice you are. They are not interested in
Picard at all. They have their own interests to pursue and will govern their
behavior to further their own ends, limited only by whatever binding agreements
they have made. Interview, supra note 69. When confronted with such beings,
formal procedure can provide the structure needed for dispute resolution.

87. Measure, supra note 43 (Picard). "You see, sometimes it does work,"
Louvois says of the formal adjudicatory system after Data's rights are affirmed
and he declines to submit to the procedure. Id. (Louvois).

88. In The Measure of a Man, reference was made to a Federation
Constitution including guarantees of civil liberties in many ways the same or
similar to those in our own Bill of Rights. Id.

89. In this respect, the situation in the Federation appears to be similar
to that in the United States before the passage of the Fourteenth Amendment.
During this period, the Bill of Rights only limited actions of the federal
government and not of the states. See Barron v. Mayor & City Council of
Baltimore, 32 U.S. (7 Pet.) 243 (1833). It should be noted, however, that even
before passage of the Fourteenth Amendment, the United States Constitution
contained some specific limitations on states, including, inter alia,
prohibitions on impairing the obligation of contracts and enacting bills of
attainder or ex post facto laws. U.S. Const., art. I, 10. There is no indication
that the these limits exist in the Federation Constitution.

90. It should be noted, of course, that the nature of a planetary government
might mean that it would not qualify for membership in the United Federation
of Planets in the first place. In STNG: The Hunted, No. 58 (Jan. 6, 1990),
revelations about the government's inhumane treatment of its genetically altered
soldier class convince Picard that Angosia III is not ready for Federation
membership. This would also suggest that a planet which radically changed its
government in a negative manner might be thrown out of the Federation, but
this issue has not yet arisen in STNG.

91. Former STNG staffer, Melinda Snodgrass, who is also a lawyer, suggested
that diplomatic immunity, a special court empowered to hear such cases or a
clear conflict of laws rule would almost certainly exist to deal with such
problems. Interview, supra note 69.

92. See, e.g., 22 U.S.C. 254(d) (1988) (providing for dismissal of
suit brought against anyone having diplomatic immunity "under the Vienna
Convention on Diplomatic Relations, under section 254(b) or 254(c) of this
title, or under any other laws extending diplomatic privileges and
immunities....").

93. Perspective, supra note 46.

94. Id.

95. In Perspective, the following exchange takes place between Chief
Investigator Krag and Captain Picard:
   Krag: [Riker] will be given a chance to prove his innocence.
   Picard: Investigator, in our system of jurisprudence, a man is innocent until
proved guilty.
   Krag: In ours, he is guilty until he is proved innocent. And you are under
our jurisdiction. If I understand Federation regulations on this matter, and I
just happened to look them up before I....
   Picard: I am aware of Federation regulations sir, and if you investigate
further you will find the Captain decides if extradition is warranted.
   Id.

96. STNG: Justice, No. 7 (Nov. 7, 1987).

97. Id.

98. A very interesting legal question is skirted in Devil's Due. The
question is whether a contract to sell one's descendants into slavery, or for
that matter to obligate them in other ways, can ever be binding. The question is
avoided by the plot device of having the population of the planet accept the
binding nature of the contract, thus leaving the questions of whether its terms
had been fulfilled and whether the claimant was actually Ardra, the contracting
party.
We wish some consideration had been given to the more fundamental question,
because the story presents a dark and uncomfortably personalized version of the
"social contract" theory which is often offered as the philosophical basis for
the legitimacy of the modern democratic state. "At least since Locke's
impassioned defense of the natural freedom of men born into nonnatural states,
the doctrine of personal consent has dominated both ordinary and philosophical
thinking on the subject of our political bonds." A. John Simmons, MORAL
PRINCIPLES AND POLITICAL OBLIGATIONS 57 (1979).

99. Great Bird, supra note 13, at 36-37.

100. See, e.g., Communications, Elegies, STARLOG: THE SCIENCE FICTION
UNIVERSE Feb. 1992, at 12-16; Letters, T.V. ZONE: THE MONTHLY MAG. OF CULT
TELEVISION, Sept. 1991, at 12-13.

101. See supra notes 73-98 and accompanying text.

102. STAR TREK: THE OFFICIAL FAN CLUB, Mar./Apr. 1992, at 5-6 [hereafter
FAN CLUB].

103. See Mark Altman, Marina Sirtis Ship's Counselor, CINEFANTASTIQUE, Oct.
1991, at 39.
"The women on this show are very non-threatening.... I don't think it's
realistic. It's not realistic for the 20th century so it's definitely not
realistic for the 24th century. Ever since Denise [Crosby, as Security Chief
Tasha Yar] left the show ... the two women that are left are both doctors in the
caring professions. You do see female admirals, but ... the fans don't really
care about our guest stars. They care about the regulars and what they want to
see are the regular women having more power."
Id. (quoting Marina Sirtis).

104. NEW VOYAGES, supra note 32, at 29 (quoting Altman).

105. See, e.g., CINEFANTASTIQUE, Oct. 1991, at 46.

106. Bill Florence, Marvin V. Rush Guide to "The Host", STAR TREK
THE NEXT GENERATION, THE OFFICIAL MAG., June 1992, at 56.

107. FAN CLUB, supra note 102, at 6.

108. Mark Altman, The Next Generation Tackling Gay Rights,
CINEFANTASTIQUE, Oct. 1992, at 71 ("one of the most commented on
shows they ever had").

109. In the 20th century, "the rehabilitation theory rests upon the belief
that human behavior is the product of antecedent causes, that these causes can
be identified, and that on this basis therapeutic measures can be employed to
effect changes in the behavior of the person treated."
Wayne R. LaFave & Austin W. Scott, Jr., CRIMINAL LAW 1.5, at 24 (2d ed.
1986).

110. NEW VOYAGES II, supra note 32, at 72. Series writer Brannon Braga
marvelled that Frakes would have nonetheless been willing to kiss Soren in the
episode's love scene.

111. Id.

112. Id.

113. Id.

114. Id.

115. Id.

116. Id. at 72-73.

117. Id. at 73.

118. Id.

119. Id.

120. Altman, supra note 108, at 71.

121. NEW VOYAGES II, supra note 32, at 72.

122. "Staff writer Brannon Braga ... was mystified by the negative mail. Some
people reacted to the show in a way that I didn't understand.... They thought we
were advocating a particular sexual preference. I don't think that's true at
all. We were advocating tolerance. What's so risky about making a statement that
intolerance is bad?"
Altman, supra note 108, at 74 (quoting Brannon Braga).

123. STNG appears to conclude that the 24th century is pro-choice. In one
episode, for example, Troi becomes pregnant by a unique being which enters her
body while she sleeps. It is made clear that she could terminate the pregnancy
but chooses not to do so.

124. Funnily enough, this is the same sobriquet Q gave to Worf.

125. STNG: Elementary, Dear Data, No. 28 (Dec. 3, 1988). See also Brian Alan
Lane, "Elementary, Dear Data" Mission Report, STAR TREK THE NEXT
GENERATION, THE OFFICIAL MAG., Apr. 1989, at 25.

126. NEW VOYAGES, supra note 32, at 59-60.

127. S.A. Terilli, Case Adds New Urgency to Long-Running Debate, MIAMI
HERALD, Mar. 28, 1992, at A13. See Fla. Stat. Ann. 382.009 (West Supp. 1992).

128. S.A. Terilli, Legislature Considered Changing Law Dilemma Depends On
Definition of Death', MIAMI HERALD, Mar. 27, 1992, at A17.

129. Charles E. Hecker, Court: Baby Born Without Brain Was Alive, MIAMI
HERALD Nov. 13, 1992, at A1.

130. STNG: Evolution, No. 48 (Sept. 23, 1988).

131. Id.

132. Id. (Stubbs).

133. Id. (Stubbs).

134. Id.

135. Id.

136. STNG: Silicon Avatar, No. 104 (Oct. 14, 1991).

137. "It's difficult not to imagine how Captain James T. Kirk and his crew would
have handled the same situation.
   Chekhov: Approaching crystalline entity, Captain.
   Kirk: Hold position, Mr. Chekhov. Mr. Sulu, lock phasers on target and await
my order.
   Spock: Jim, it's attempting to communicate with us.
   Kirk: I realize that, Spock. I just don't like what it has to say.... Fire!"
NEW VOYAGES II, supra note 32, at 35.

138. See, e.g., CINEFANTASTIQUE, Sept. 1990, at 46 (citing Melinda
Snodgrass, author of The Measure of a Man).

139. NEW VOYAGES, supra note 32, at 66.

140. Measure, supra note 43.

141. Id.

142. Id. (Guinan).

143. Id.

144. We were somewhat disappointed to hear the most lawyerly of all STNG
characters turning the issue in this direction, especially when neither Riker
nor Picard showed any inclination to do so. Her curious characterization marks a
shift away from the objective scientific tests of awareness and intellect to
the more amorphous religious test of being, in essence, "touched by God."
Assuming that the separation of church and state is embodied in the Federation
Constitution, this particular formulation would not be the basis for decision.
Contrast her religious approach with the narrowly focused branch of the United
States Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 158
(1973), holding that a fetus is not a "person" within the meaning of the Fourteenth
Amendment.

145. Measure, supra note 43.

146. NEW VOYAGES, supra note 32, at 106.

147. Id. at 106-07.

148. STNG: The Offspring, No. 63 (Mar. 10, 1990).

149. Id. (Troi).

150. Id. (Picard).

151. Id. (Data).

152. Id. (Picard)

153. We see this as further evidence that the lack of formal regularity in
the 24th-century legal system has a downside to it. In a more formalistic
system, the precedent established in The Measure of a Man would likely have
been deemed to be controlling. Here, it seems that the prior decision has some
persuasive value but does not clearly control the decision as to Lal.

154. The Offspring, supra note 148.

155. Id. (Haftel, Picard).

156. A legal issue seemingly overlooked was the culpability of the admiral
in the death of Lal. Knowing her to be a sentient being, he seemed to hound her
into breakdown and death. We suggest that criminal charges would have been
appropriate in this situation.

157. See STNG: The Best of Both Worlds pt. I, No. 73 (Sept. 17, 1990);
STNG: The Best of Both Worlds pt. II, No. 74 (Sept. 24, 1990).

158. STNG: I, Borg, No. 123 (May 18, 1992).

159. This episode has been criticized as "totally emasculating the single
greatest antagonist ever created for Star Trek. " NEW VOYAGES II, supra note
32, at 92 (quoting Altman).

160. I, Borg, supra note 158.

161. RESTATEMENT (SECOND) OF TORTS 652A (1977).

162. STNG: Up the Long Ladder, No. 43 (May 20, 1989).

163. NEW VOYAGES, supra note 32, at 77-78 (quoting Melinda Snodgrass).

164. STNG: Hollow Pursuits, No. 68 (May 5, 1990).

165. Michael Piller says: "It really was not intended directly at STAR
TREK fans. It was certainly about fantasy life versus reality." Id. at 112.
But see id. at 112 ("A wake-up call for Trekkies which, like William Shatner's
SATURDAY NIGHT LIVE admonition, It's only a TV show,' should remind
obsessed TREK fans to turn off the tube, take off the 'Make it So' buttons and
go outside and get a life."'). See also Edward Gross, Cliff Bole Of "Redemption" &
"Unification", STAR TREK THE NEXT GENERATION, THE OFFICIAL MAG., Feb.
1992, at 31.

166. Hollow Pursuits, supra note 164.

167. NEW VOYAGES, supra note 32, at 112 (quoting Michael Altman).

168. RESTATEMENT, supra note 161, 652B.

169. Hollow Pursuits, supra note 164 (Riker).

170. STNG: Booby Trap, No. 53 (Oct. 28, 1989).

171. STNG: Galaxy's Child, No. 89 (Mar. 11, 1991). See also Mission Report,
"Galaxy's Child", STAR TREK THE NEXT GENERATION, THE OFFICIAL MAG., Sept.
1990, at 39.

172. STNG: Up the Long Ladder, supra note 162 (Riker).

173. RESTATEMENT, supra note 161, 652C.

174. 2 Thomas D. Selz, et al., ENTERTAINMENT LAW 18.01, at 18-5 (2d ed.
1992) (quoting Motshenbacher v. RJ Reynolds Tobacco Co.,
498 F.2d 821, 824 (9th Cir. 1974)).

175. NEW VOYAGES II, supra note 32, at 56.

176. Id. at 57 (quoting Michael Piller).

177. RESTATEMENT, supra note 161, 652B cmt. b.

178. The use of telepathy or empathic abilities in the criminal context
arise in The Drumhead, where Admiral Satie's use of a telepathic inquisitor
makes Picard think about the propriety of his use of Troi's abilities in his own
investigations. The Drumhead, supra note 39.

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