Small-town Star Trek museum teaches American cultural history, limits of fan fair use in copyright law

I have the con at the Star Trek Original Series Set Tour, Ticonderoga, N.Y., Oct. 2025
(all photos RJ Peltz-Steele CC BY-NC-SA 4.0)

The sleepy town of Ticonderoga, nestled between Lake Champlain and Lake George in upstate New York just south of the Adirondacks, is the unexpected home of a treasure of American history. 

I don't mean the historic Fort Ticonderoga of the American revolutionary era. 

The Star Trek Original Series Set Tour offers visitors an incomparable experience in television history and a lesson in intellectual property law along the way.

Though the transporter was conceived to save money on
prop shots of shuttle landings, it still cost (1966) $600
per effect per person. That's one reason why red shirts
didn't beam down unless they had, let's say, business on
the planet. Regular-cast shots could be recycled. The
platform circles were made with glass from old spotlights.
It's wild to see close up how clever prop crew were with
what they had on hand.

Star Trek in a Small Town 

I've written many times about the relevance of Star Trek to American law and public policy from the civil rights era to today. The Set Tour is the passion project of Star Trek superfan and Ticonderoga native James Cawley, an Elvis impersonator by trade. Cawley is someone who deeply appreciates Trek's cultural importance and has played a role in ensuring that the franchise survives and lives up to its legacy.

Inside the inconspicuous shell of a former Family Dollar in downtown Ticonderoga, Cawley has recreated the Desilu Studios set of the original Star Trek series of the 1960s in astonishing detail, down to the illuminated, colorful "gumdrop" buttons of starship Enterprise control panels.

Little survived from the original 1960s set. At that time, creators still thought about television productions as one-off broadcasts. Syndication was known, but shows were not yet designed for it. Moreover, few critics would have picked Star Trek, a curious experiment in sending Wagon Train to space, as a show that would stand the test of time. 

In fact, Star Trek's perceived ephemerality became a challenge in reconstructing the set, a Set Tour guide explained. The original series had no script supervisor in charge of continuity, mostly because no one expected viewers would see a Star Trek episode for a second time to notice details. A prop that was a scary alien computer in one episode was gently repurposed to be an Enterprise control system in another. Budgets were thin, too, so prop supervisors were ingenious recyclers.

Cawley long collected the few artifacts and set fragments that remained. In the early 1990s, he worked his way into an assistantship with legendary costume designer William Ware Theiss, then working on Star Trek's reincarnation in The Next Generation. Theiss had, and gave to Cawley, discarded blueprints of the 1960s set, as well as original series uniform patterns. Cawley found his calling and embarked on recreation of the set with excruciating attention to detail.

Sickbay: My guide was terrific, knowledgeable and full of lore.
Here the medical scanner is CGI, but in the 1960s, a grip was
needed just to move the little white indicators up and down
from behind the wall.

A Golden Age of Fan Fiction 

Homage to the past, though, was not Cawley's sole design. In the early 20-aughts, he became the founding producer and "Captain Kirk" star of a Star Trek fan production, New Voyages, later known as Star Trek: Phase II. The highly regarded fan franchise published online 10 episodes from 2004 to 2016, and many original series talents contributed to the show, such as writer David Gerrold and actors George Takei (Hikaru Sulu), Walter Koenig (Pavel Chekov), and Grace Lee Whitney (Janice Rand).

That's where things get interesting from the intellectual property perspective.

Star Trek brand owners Paramount, CBS, and Viacom—their corporate relationships shifted over the years—had mixed feelings about Star Trek fan productions. There were many, though none besides New Voyages had fixed sets.

When Star Trek's popularity waned, fan fiction kept the franchise alive in public imagination. As long as fan projects were not for profit, the corporations were content to look the other way, even striking an agreement at one time with New Voyages. But when Paramount, et al., were on the verge of a new Star Trek TV or film project, they tightened the reins.

The corporate equivocation, in tandem with a committed and creative fan base, allowed Star Trek fan fiction to thrive in a way that is uncommon in the American entertainment space. Nevertheless, corporate indulgence started to wane after J.J. Abrams took the helm of the 2009 film Star Trek and revitalized the franchise. 

 The recreation of Engineering is two stories high, as was the
original after it was augmented for Original Series season 2.
The warp core is about 12 feet deep but looks deeper
because of a forced-perspective design to fool the camera.

Copyright Showdown

Things came to a head in 2015. Alec Peters, an actor in Phase II, raised money and excitement around a new fan-film project, Star Trek: Axanar, teased by a compelling 2014 short, Prelude to Axanar (IMDb). With advances in technology, the production quality of fan films was by then quite good. Paramount meanwhile was closing in on 2016 release of a new feature film in the reboot universe, Star Trek Beyond, and a new TV series, Star Trek: Discovery, was slated for launch in 2017. In the last days of 2015, Paramount sued Peters and the Axanar project for copyright infringement.

The copyright case, and to a lesser extent the trademark case, on fan fiction is really open and shut. Profitable or not, the take-offs are not permissible without license by the rights-holder. There is a fuzzy line at the outer boundary of copyright, where protection of creative product gives way to "the scènes à faire doctrine." But it's not that fuzzy.

Law school learning on copyright impresses on students that eligible works must be "fixed in a tangible medium of expression." That does not mean, however, that only that which is committed to print or film is what is copyrighted.

Fictional facts and storylines also may come within copyright protection. Thus, the estate of Anne Rice can claim copyright over the story of a young vampire who shacks up with the master who turned him, adopts a vampire child, and later gives a tell-all interview. But the scènes à faire doctrine ensures that copyright does not remove mere tropes from the public domain. The Rice estate cannot claim copyright infringement in all stories about blood-sucking, undead creatures who cannot tolerate sunlight.

To put that in Star Trek terms, anyone is free to write a story about a human-led inter-species alliance of space-faring civilizations that explores the galaxy and maintains uneasy relations with warlike enemies. But the closer the author gets to a San Francisco-headquartered federation of planets with warp-drive starships, transporters, phasers, and emotion-averse characters with pointy ears, the more the risk of copyright infringement. The line is fuzzy, but it's not wide.

The problem for fan fiction always is that the stories fans want to tell are the stories that explore the boundaries of the established narrative, the existing fictional universe, and ideally, of the recognizable characters in it. That's exactly what copyright does not allow. 

Many scholars have argued for more expansive interpretation of fair use to allow for fan creativity in the presence of clear disclaimer. There's a whole book about the problem of fan fiction in historical and multi-national perspective by California Western Law Professor Aaron Schwabach. The last chapter of Schwabach's book is titled tellingly, "Fanfic: The New Voyages."

Archivist and professor emeritus in cinema studies at NYU, formerly at UCLA, Howard Besser made the case as to Star Trek in particular, besides other popular properties, such as Harry Potter, that the public commons should be larger. He called out corporate owners such as Viacom and Paramount for overreach with unjustifiably aggressive cease-and-desist letters.

But the fact and law remain, protection of fan work that plainly takes place in the same universe as copyrighted works, even when disclaiming ownership and avoiding recognizable names of fictional places and characters, and omitting trademarked titles, still is a non-starter. The analysis is of the totality. Nena may invoke Captain Kirk passingly in "99 Luftballons," but a fan film in the Star Trek universe treads too far.

The Treaty of Axanar 

It was no surprise, then, that the federal court in Paramount Pictures Corp. and CBS Studios, Inc. v. Axanar Productions, Inc. and Alec Peters refused the defendants' motion to dismiss in May 2016. The case over Axanar was careening toward a jury trial, the parties arguing heatedly over evidence and jury instructions, when suddenly, in the third week of January 2017, Paramount and Peters settled.

Out of the Axanar settlement came a remarkable new document, which articulated and still states the boundaries around what Paramount and CBS will tolerate in Star Trek fan fiction. The guidelines stated severe new limits, including:

• The duration of a fan production is limited to 15 minutes, or one story in two parts for 30 minutes, "with no additional seasons, episodes, parts, sequels or remakes."
• The work may not have "Star Trek" in the main title and must be subtitled, "A STAR TREK FAN PRODUCTION."
• No Star Trek content content may be used, and Star Trek-recognizable costumes and props must be official Star Trek merchandise.
• No creator or actor ever employed in a licensed Star Trek production may work on the project, and no one working on the project may be paid.
• A production must be non-commercial with a budget from fundraising limited to $50,000.

Described by fan fiction enthusiasts as "draconian," the new guidelines made impossible the production of projects fans had come to love. It seemed that no film such as Axanar could proceed. Serial projects such as Phase II had to call it quits. The golden age of streaming Star Trek fan fiction was over.

Prelude to Axanar
movie poster
(presumed ©; illustrative use)

Axanar Fal-Tor-Pan?

Yet, for better or worse, the Paramount-CBS guidelines were far from the last word on Axanar. Secret arbitration over money raised for Axanar followed the 2017 settlement. In 2023, Paramount sued Peters in California Superior Court in Los Angeles, alleging that he never stopped raising money for an Axanar film, and asking the court to affirm the outcome of the arbitration. 

Peters did not appear, and the court entered Paramount's desired order in February 2024. Rights-holder copyright consultant Jonathan Bailey, founder of CopyByte, wrote about the case for his Plagiarism Today. Fans follow developments around Peters and Axanar in the public Facebook group page, AxaMonitor.

Meanwhile, production on Axanar most definitely continued. Six days after Paramount had its way in court in Los Angeles, Axanar wrapped filming on its set, Jonathan Lane reported on his Fan Film Factor. Peters himself gives monthly updates on Axanar on YouTube. 

In the October 2025 Axanar update, posted on October 17, Peters reported on post-production progress on the latest installment of Axanar, to follow Prelude. He referenced the lawsuit, thereby suggesting that subsequent "episodes" (not "films") might comply with the Paramount-CBS guidelines. If that's what he meant, then a single episode of Axanar cannot exceed 15 minutes, shorter than Prelude's 21 minutes, and there can be only two. Yet Peters described Prelude as mere "proof of concept." Confirming Paramount's 2015 fears, Peters said that Prelude was designed to demonstrate that a fan work could be of such high quality as to be technically indistinguishable from an official studio product.

The ultimate extent of Peters's fealty to the guidelines is unclear. I wonder whether he regards them indeed as mere "guidelines"—like the 1976 copyright fair use guidelines that, in my opinion, courts have too often misapplied as hard lines. In the October update, Peters talked about beta testing a new fundraising website. I wonder further whether he's exceeded the cap of the guidelines. He encouraged fan financial support at the Axanar website.

There was really only one corridor for every corridor shot.
Signs and wall fixtures could be changed, and it curved
(behind camera here) for an illusion of more space.

A New New Voyage

The Axanar debacle in 2016 left Cawley in an awkward spot. His one-of-a-kind set reconstruction had little remaining practical use for filming after Phase II folded. Yet adoring fans would bask in the extravagance of the work. He conceived of the Set Tour. Still, without official imprimatur, he would risk legal jeopardy by opening to the public. 

Cawley invited Paramount execs to Ticonderoga to have a look. No doubt, they were skeptical going in. But, at least as a Set Tour guide told the story, the execs were so impressed with Cawley's loving attention to detail that they agreed to license the Star Trek name. Thus, the Star Trek Original Series Set Tour is not, as I had first suspected, a trademark infringement flying under the radar in tiny Ticonderoga. Set Tour tour guides will not volunteer information about Phase II or other fan productions. Whether they're just playing it safe, or that was an agreement with Paramount, I do not know. But guides will answer questions about Phase II if asked.

The Star Trek Set Tour has a deceptively modest exterior.

To Cawley's credit, he always played ball with Star Trek owners. Remember, it was New Voyages that reached an express understanding with Paramount, before Axanar came along. Cawley came by the 1960s set plans honestly, by all accounts, while working for Theiss on the official franchise. And the Captain Kirk of eight New Voyages episodes even scored a cameo as a bridge officer in J.J. Abrams's Star Trek. The Set Tour has hosted original series cast members as guest tour guides. The original Captain Kirk, ninety-four-year-old William Shatner, is expected back in November 2025.

There is, by the way, a USS Ticonderoga in Star Trek, though accounts differ over whether the name is a nod to Cawley, American history, a real-life Ticonderoga, or all of the above. Five U.S. Navy ships have borne the name Ticonderoga, including an aircraft carrier that distinguished itself in World War II and the Vietnam War. In the 1970 epic war film Tora! Tora! Tora!, the Essex-class Ticonderoga served as a set for the slightly smaller Yorktown-class aircraft carrier Enterprise (CV-6, not the later, nuclear-powered Enterprise carrier built in 1961). A great many other Navy carriers lent their names to Star Trek starships, including the Lexington, Saratoga, and Yorktown in The Original Series.

I had a (phaser) blast of a good time at the Star Trek Original Set Tour earlier this month. On my way home from the American Society of Comparative Law annual conference in Montreal, walking through a wonderland of Gene Roddenberry optimism about humanity's future was a welcome antidote to Professor James Q. Whitman's gloomy prognosis for rule of law in the United States.

Set Tour visitors get a turn in the captain's chair amid Cawley's breathtaking recreation of the classic bridge of the starship Enterprise. Ironically in revolutionary-historical Ticonderoga, amid relics from an imaginary future, I've never felt more a part of American history.

(All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

The Set Tour has tons of artifacts, including ship models, props, and uniforms. Some of the props are recreations, but made so well that they were used in throwback, time-travel episodes, such as Deep Space Nine's 30th anniversary "Trials and Tribble-ations"—besides fan shows such as Phase II.

Geologist beats Section 31 to Guardian of Forever

Dr. Steven Mueller, the intrepid geologist and my personal friend, has located the Guardian of Forever.

 

On earth, at present, the Guardian is located in Oman, where locals know it as the "Rock of Wishes."

Dr. Mueller's timing is impeccable (as usual, for those who know him), given the recent wrap of Discovery and release of a trailer for Section 31, as Captain Philippa Georgiou has a unique history (1, 2) with the Guardian.

Photos © Steven Mueller, used with permission. Contact author for license.

Space law program reaps lessons from House Atreides

Luca Galuzzi via The Wildcat Tribune, Dougherty Valley High School, San Ramon, Cal. CC BY-SA 2.5

My friend and colleague Tracy Reynolds, Staff Judge Advocate to U.S. Naval Medical Forces Atlantic, will lead a fascinating Dune II-contemporaneous panel next week.

Zoom registration is open and free for Friday, March 29, at 12 noon US EDT.

International Humanitarian Law in Space:
Lessons Learned from the Fall of House Atreides

What can we learn about resource scarcity, insider threats, and over-reliance on technology from Frank Herbert's novel Dune and its recent film adaptation? How may these lessons be applied in outer space, on the Moon, or on Mars? Join the American Red Cross IHL Program as our panel of distinguished legal experts examine a wide range of issues, from great power competition on Arrakis to the conduct of hostilities between the Atreides, Harkonnen, and Fremen.

The panel comprises:

• CDR Tracy Reynolds, United States Navy JAG Corps
• David Kohnen, the Captain Tracy Barrett Kittredge Scholar of War Studies and Maritime History at the US Naval War College
• Michelle L.D. Hanlon, Co-Director of the Air and Space Law Program at the University of Mississippi School of Law and its Center for Air and Space Law
• Thomas Harper, Senior Counsel, International Humanitarian Law, American Red Cross National Headquarters
• Namrata Goswami, author of Scramble for the Skies The Great Power Competition to Control the Resources of Outer Space

The program is sponsored by the American Red Cross and supported by the Space Law Interest Group of the American Society of International Law.

Patents 'sound less NASA and more Starfleet,' attorney says; is sci-fi's 'anti-gravity' already in the works?

Artist conception of Gravity Probe B and space-time.
NASA Universe via Flickr CC BY 2.0

A number of U.S. patent filings over the last decade point to the development of "anti-gravity" and might evidence the reverse engineering of alien technology in government possession, L.A. attorney Puya Partow-Navid wrote for Seyfarth late last month.

British astronomer Chris Impey cataloged for PBS News Hour the "flurry of activity over the past few years" fueling speculation about "unidentified anomalous phenomena" (UAP), also known as unidentified flying objects (UFOs), including congressional hearings in July. NASA released a report Thursday concluding that "we do not presently have the body of data needed to make definitive, scientific conclusions about UAP," but calling for more and better study.

In his article for Seyfarth, Partow-Navid listed four patent applications from 2016 to 2022 that suggest the inevitable invention of a gravitational propulsion system. Such a system could counterpose gravitational waves and the vacuum of space to move a spacecraft without propellant. A couple of the inventions "sound less NASA and more Starfleet," Partow-Navid wrote, thus evoking the connection to aliens. 

Mastery of gravity is a device of science fiction as old as the genre itself. Artificial gravity is essential to make human life in space plausible. Arthur C. Clarke in 2001 described ships that rotated around an axis to simulate gravity with centrifugal force. That's a scientifically sound method, if we can engineer and build the thing. When science fiction came to film and television in the 20th century, the zero-gravity special effects of Interstellar were either impossible or impossibly expensive, so artificial-gravity technology usually was just assumed.

"I was progressing in great leaps and bounds."
Illustration from H.G. Wells,
First Men on the Moon (1901)
Public domain via Internet Archive

If we can create gravity, we can cancel it out, futurists figure. H.G. Wells imagined a shield that would negate gravity as early as his 1901 First Men on the Moon. In the 1960s, Star Trek imagined anti-gravity to move heavy objects with minimal effort and even build cloud cities (a few years before (or "a long time" after) Lando Calrissian called one home). (See generally the Lawrence M. Krauss classic, The Physics of Star Trek (1995).) Gravity cancellation, though, was a solid venture into the hypothetical; there is no shortcut such as centrifugal force to get there. Fortunately for science fiction film and TV, anti-gravity is the easier deception.

Nevertheless, and the possible infusion of alien know-how notwithstanding, anti-gravity has been a subject of serious science and concerted military investigation on and off since World War II. Einstein's theory of general relativity was key, because if gravity is a force relative to mass and motion, then we might be able to manipulate it similarly. The door would be open not only to gravitational propulsion; even "warp drive" would be on the table: travel to a distant destination without actually crossing the space in between.

The patent applications that Partow-Navid cites are really not so far off the leading edge of human science. Claims of gravity manipulation have been floating around the scientific peer review space for three decades now. Even if no effort has come to verifiable fruition, the experiments are striking out in a direction promising enough to be credible and tantalizing.

That's not to discount that alien tech could offer a welcome assist. Pessimists, or realists?, who pooh-pooh warp drive point out that if it were so readily achievable that we would get there in the cosmically brief era of human scientific development, then some of the statistically probable prevalence of alien civilizations in the universe should be already in orbit around our planet.

Maybe they are.

The article is Puya Partow-Navid, Unraveling the UAP Enigma: Are Patents the Gateway to Alien Tech?, Seyfarth (Aug. 29, 2023).

Liske translates Yeats poem with link to dystopian sci-fi

© Cyprian Liske; used by permission.

My friend and scholar-translator Cyprian Liske has prepared a Polish translation (image) of W.B. Yeats's "Aedh Wishes for the Cloths of Heaven" (1899).

Here is the Yeats original:

Had I the heavens’ embroidered cloths,
Enwrought with golden and silver light,
The blue and the dim and the dark cloths
Of night and light and the half-light,
I would spread the cloths under your feet:
But I, being poor, have only my dreams;
I have spread my dreams under your feet;
Tread softly because you tread on my dreams.

Liske is a doctoral student in sustainable development and international trade law. We worked together in the American Law Program of the Columbus School of Law of The Catholic University of America and the law school of Jagiellonian University in Poland.

I don't speak Polish beyond a few words, so can't well appreciate Liske's skill as a translator. But I was intrigued by this project because, Liske informed me, the poem was inspiration for a 2002 science fiction film starring Christian Bale, Equilibrium.

The film didn't do very well. In the patriotic wake of 9/11, a dystopian parable might have been just a bit ahead of its time. I might now revisit it.  Ostensibly a romantic poem, "Cloths of Heaven" gets a lot of play in popular culture; its use in this context is compelling.  Equilibrium is set in a world in which emotion is outlawed: a response to the violence and hatred that rent the world in a third great war.  As the United States and Turkey condemn the burning of the Koran in Sweden, igniting, if you will, a perennial free speech debate, Equilibrium seems not as terribly far fetched as its précis suggests.

I just finished watching HBO's Succession (s4), and it struck me that its Sorkin-esque dialog, timing, and staging marks it as a dystopian antithesis of my beloved West Wing: respective representations of our times, now and then.  Our dystopian restatements of contemporary society, perhaps like the corporatocracy itself, seem as yet not to have found rock bottom.

Star Trek's latest voyage to 'strange new worlds' charts a 'final frontier' evocatively close to home

"In Defense of Episodic TV," read the headline on a story by Associated Press journalist Ted Anthony last week about Star Trek: Strange New Worlds, Paramount's serialized prequel to Star Trek's 1960s Original Series.

Author of Chasing the Rising Sun (2007), the intriguing biography of a classic American song, Anthony lauded Strange New Worlds for what might seem like its mundanity (e.g., Miami Herald):

Members of the Enterprise crew on “Strange New Worlds” are living their lives. They’re doing their jobs, even when their jobs really suck—like when they lose one of their own or are under attack. Like us, they find themselves in different moods from episode to episode, from scene to scene. They’re silly one moment, crisp and efficient the next, emotional the next and then, maybe, silly all over again. It all feels more like the cadence of actual life than one of these deep dives into a single, relentless story arc.

I second Anthony's paean. Strange New Worlds is a peculiar joy. In its return to the episodic formula of the 20th century Original Series and Next Generation, and, indeed, a classic television formula that has given way to the predominance of the season arc in the streaming era, showrunners Akiva Goldsman and Henry Alonso Myers have reinvigorated the incomparable capacity of science fiction to comment critically on the real world through a veil of analogical fantasticism. Such was the original vision of Star Trek creator Gene Roddenberry (on this blog).

Strange New Worlds episode 5, "Spock Amock" (released June 2, 2022), beautifully exemplifies the episodic approach. (Plot details, but no story-end spoilers, follow.)

Paramount invested lavishly in Strange New Worlds, and it shows in elaborate sets and stunning special effects with epic space battles. "Spock Amock" subtly exhibits this investment, but action and suspense are not at the heart of the episode. Rather, "Spock Amock" is a deceptively low-key human interest story unfolding as the Enterprise crew go on shore leave. Frankly, such stories usually turn me off because, in the streaming era, they are the product of lesser writers seeking to fill time in unnecessarily multi-episode productions. That's not what's happening here.

This story by Myers and Robin Wasserman comprises three discrete lines. In one, Spock (Ethan Peck) and his fiancée T'Pring (Gia Sandhu) wrestle with a sometimes mildly comical Freaky Friday flip of consciousness; Number One (Rebecca Romijn) and Lt. Noonien-Singh (yes, she's related) (Christina Chong) investigate a ship disciplinary matter; and Captain Pike (Anson Mount) and Spock/T'Pring negotiate a treaty with frustratingly obstinate alien leaders. Without giving too much away, the striking theme that unifies all three story lines, in the end, is, simply, empathy. By interacting with the unknowable ways of other beings, every character is compelled to look inside her or his own mind, own character, and thereby to grow in the capacity to see the world from a different perspective.

The Enterprise never leaves space dock in "Spock Amock." Yet perhaps better than any other, the episode exemplifies her mission, to explore the strange new worlds of the final frontier. For it always has been true of Star Trek since its opening sequence first aired in 1966:

The final frontier is us.

Time travel would warp tort law, attorney imagines

Austin Beast AB (Pixabay)

Tired of earthbound law constrained by the arrow of time?  Attorney, comedian, and comic book fan Adam J. Adler writes an enjoyable column on law for the aptly named Escapist online magazine.  Recently he tackled the implications of time travel in tort law.  Back in August, he considered transporter accident liability.

Time travel in a Groundhog Day-like scenario, Adler observes, would change the moral expectations of the objective reasonable person as he or she acquires additional knowledge about cause and effect through multiple iterations of the timeline.  In the end, Adler offers a theory on why we haven't yet met time travelers.  Check it out, and remember to suspend your disbelief and enjoy.

The article is Adam J. Adler, Time Travel Torts: How Law Gets Dicey When Dealing with Groundhog Day, The Escapist, Oct. 4, 2020.  

And speaking of time travel, Star Trek: Discovery season 3 premiered last night.  Here's the season trailer, if you can stand the excitement!

Can ‘Star Trek’ put the U back in –topia?

This weekend will see the premiere of the newest entrant in the Star Trek franchise, CBS’s Star Trek: Discovery (trailer).  Notwithstanding CBS’s dubious bid to build a new model for content delivery in CBS All Access—creative initiatives crushed by commercial imperatives is a tradition in Star Trek history—Discovery marks a worthwhile moment to take stock of where we are now as a global village, 51 years after the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original Series.”

Roddenberry’s vision was a utopian one.  It seems almost cliché now to recount the novel “enterprise” of a multi-national crew spreading humanist idealism throughout the galaxy.  Despite its military trappings, Star Fleet was tasked with exploration of the final frontier on behalf of a United Federation of Planets (UFP).  Star Trek represented all the good parts of cultural imperialism and mitigated all the bad with deep, moral self-reflection.

Martin-Green
(CC 2.0 Gage Skidmore 2016 via flickr)

It looks like Discovery will resonate in the Roddenberry tradition.  The series, which might vary perspective and setting across seasonal sub-arcs, opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female captain of color in Michelle Yeoh (Crouching Tiger’s Yu).  Discovery takes place after humankind’s first forays into deep space, which were depicted a decade ago by Star Trek: Enterprise, but still before the adventures of James T. Kirk and crew in the 1960s Original Series and the current movie-reboot series.  The nascent UFP is in a cold war with the Klingon Empire.  This fictional era and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train to the stars.” 

But can that vision get traction in today’s world?

However much our multi-platform electronic environment has served up an embarrassing surfeit of science fiction, we remain awash in dystopian imaginings.  Disclaimer one, yes, I realize that dystopian fiction is not new; even 1984 dates to 1949.  Disclaimer two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The Handmaid’s Tale, having just finished the latter’s s1 yesterday.  (Nick is going to save her, right? right?!)  Yet many a commentator has observed the peculiar resonance of dystopian fiction today, in a world in which hunger and poverty persist, the wealth gap widens, and our standard of living and expectation of leisure seem after all not to have skyrocketed in consonance with technological ingenuity.

There was a time after the Berlin Wall fell, in the 1990s amid perestroika and glasnost, that it seemed like we might be on an upward trajectory.  The turn of the century brought with it a cautious optimism.  Maybe the era of world war and nuclear nightmare could be put to bed, and humankind would rise from those ashes and turn at last to the business of life on, and beyond, earth.

Then 9-11 happened.  The world went back to war, and we’re still in it.  Our American streets fill with protests fueled by racial division.  An unprecedented humanitarian crisis tears at the seams of European socio-economic union.  The septuagenarian United Nations—real-world analog of the thinly veiled UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere.  And oh yeah, the ice caps: they’re melting.

Inevitable dystopia seems the apt model to envision our future on earth.  Wherefore art thou, Discovery, into our world of social and political fracture?  Can we even recognize ourselves in utopian science fiction?

It bears remembering that the world to which Roddenberry first introduced Star Trek was itself no utopia.  The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black on the ‘right’ side” racism of Let That Be Your Last Battlefield, the futile primitive conflict of A Private Little War.  But that commentary was sophisticated and controversial in its time.  Star Trek’s very proffer of earthbound east and west in common pursuit of human survival and space exploration was a calculated critique of Jim Crow, the space race, Vietnam, and the Cold War.  Star Trek’s utopian vision was launched amid the civil rights fire that forged our second national reconstruction.

So maybe now is exactly the time for Star Trek.  Maybe we need utopia now more than ever, precisely because it is so unfamiliar.

As Star Trek turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500.  More’s Utopia was a social critique, not a social blueprint.  Critique always has been the raison d’être of science fiction.  There is no utility in only imagining the future.  The endgame is to hold up that parallel world next to your own, to see how the two compare.

For Star Trek, the final frontier is not space.  The final frontier—the discovery—always has been us.

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.