Monthly Archives: November 2010

Is Batman a State Actor?

Constitutional limitations on things like censorship, discrimination, and search and seizure do not apply to private individuals but rather to the federal government and, in some cases, to the states.  (The Thirteenth Amendment is a rare exception that applies to individuals).  As a result, evidence that a superhero obtains by breaking into a villain’s headquarters is admissible even though it was obtained illegally.  See, Burdeau v. McDowell, 256 U.S. 465 (1921).  And since it doesn’t invoke the fruit of the poisonous tree doctrine, any additional evidence obtained via the original evidence would also be admissible.

But what about superheroes like Batman who work in close cooperation with the police?  Could they fairly be described as state actors, thus triggering a whole spate of Constitutional protections?  I think the answer may be yes.

In Lugar v. Edmondson Oil Co. the Supreme Court gave a two-part test for whether the conduct of a private party could be fairly attributable to a state, thus implying state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible….Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

In Batman’s case, Commissioner Gordon is certainly a person for whom the State is responsible, and Batman often acts together with Gordon and obtains significant aid from Gordon in the form of information and evidence.  Batman’s conduct is also otherwise chargeable to the State because the Gotham Police Department has worked with Batman on numerous occasions (and thus knows his methods) and operates the Bat Signal, expressly invoking Batman’s assistance in a traditionally public function.  This suggests state action under the public function theory: “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”  Evans v. Newton, 382 U.S. 296, 299 (1966).

In the real world, this would cause significant problems for Batman and Gotham.  Batman’s rough and tumble style would lead to a rash of Section 1983 claims for damages and probably also for an injunction against Batman’s future cooperation in police investigations.  As discussed earlier, most evidence that Batman collects would be inadmissible, and police use of that evidence might bar the use of additional evidence collected during a subsequent police investigation.

Now, clearly none of this is the case, so there are three possibilities.  Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

Mutants and Anti-Discrimination Laws, Part Three

We’ve previously discussed two potential approaches for protecting mutants and other innately superpowered beings from discrimination.  But legal protection can be a double-edged sword for organizations that cater to mutants exclusively.  If organizations couldn’t discriminate on the basis of mutant status, would the Xavier Institute be forced to take in non-mutants?  Would S.H.I.E.L.D. be forced to hire regular people?  Probably not, but they might have to do a little restructuring to maintain their exclusivity.

(Before we get into the details, I realize the Xavier Institute no longer exists as such, but let’s assume the mutant civil rights campaign was successful pre-”Messiah Complex.”)

If the Xavier Institute is a private school that takes no public funding, then it has more leeway to discriminate, albeit with potential repercussions such as loss of its tax exempt status (assuming that the Institute is organized as a non-profit in the first place).  See, Bob Jones Univ. v. United States, 461 U.S. 574 (1983).  If the Institute takes public funding, however, then it will generally be required not to discriminate:

The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. but neither can it call on the Constitution for material aid from the State. Norwood v. Harrison, 413 U.S. 455, 469 (1973).

It could be argued that mutant status is related to individual merit, and that the special curriculum of the Xavier Institute would be of little use to a non-mutant student, but that argument cuts both ways.  If it is permissible for the Xavier Institute to discriminate in favor of mutants because it is a school for special students, then it would also be permissible for a regular school to discriminate against mutants because it is a school for typical students.

No, the most likely result is that the Xavier Institute would have to rely on private funding or open its doors to non-mutant children.  My guess is that, given society’s attitude towards mutants, few parents would send their non-mutant children there, especially since much of the curriculum would be of no use to them (e.g. Northstar’s flying class) and the super-genius mutants probably wreck the grading curve for the normal classes.

S.H.I.E.L.D. is a different story altogether.  Unlike most superhero groups, S.H.I.E.L.D. is a part of the U.S. government.  Groups like the X-Men and the JLA are presumably private organizations that do not even employ their members, so they are free to discriminate as they wish.  Private clubs can even avoid the requirements of the ADA, which is important when designing superhero bases.  42 USC 12187.  If S.H.I.E.L.D. and the US government want to avoid a discrimination suit, it will have to take some precautions.

The Federal government has specific rules that it must follow when employing people.  These rules are part of the civil service or “merit system.”  The first principle is:

Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 USC 2301(b)(1).

As you can see, S.H.I.E.L.D. has room to prefer those with superpowers where such powers are relevant to the job (i.e. a bona fide occupational qualification).  The problem is that superhuman abilities are not actually a requirement of being an agent of S.H.I.E.L.D.  Numerous S.H.I.E.L.D. agents, although plainly very skilled, are not superhuman, at least not inherently (e.g., Nick Fury, Tony Stark, Clay Quartermain).  This may make it difficult for S.H.I.E.L.D. to preferentially hire people with superpowers except when a position requires a particular ability (e.g. the Psi-Division).

There is an outlet, though.  Not all civil service positions are covered by the merit system: “‘covered position’…does not include any position which is…excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.” 5 USC 2302(a)(2)(B).  As long as the President signs off on a given position before a new agent is brought on board, S.H.I.E.L.D. is free to hire whomever it wishes.

Law and the Zombie Apocalypse

Characters in post-apocalyptic scenarios often resort to drastic measures to survive, but are they legally justified?  While the law recognizes a defense of necessity, the defense has limits.  In particular, murder (perhaps in the form of cannibalism) cannot be justified by necessity.

In The Walking Dead characters engage in cannibalism to survive.  In the lawless environment of the comics & TV series, this seems justified, but what if law and order were restored?  There is no statute of limitations for murder, and as it turns out, even the necessity of survival does not justify cannibalism.  Note that I’m talking about cannibalism that involves killing a person, not eating someone who died from other causes.

In the law-school-famous* case of R. v Dudley and Stephens, 14 QBD 273 DC (1884), it was held that necessity is not a defense to murder.  In that case, four shipwrecked men adrift in a lifeboat eventually resorted to killing and eating the youngest and weakest of the crew.  The three remaining men were picked up, whereupon they admitted what happened.  Two were charged with and convicted of murder and sentenced to death, though the appellate judge expected mercy, and indeed they were only sentenced to six months imprisonment.  The third survivor, who had been less keen on the scheme, was not charged so that he could be called as a witness, though he had also eaten the victim.

The shipwreck case is analogous to a post-apocalyptic situation in many ways.  The legal system is effectively suspended, the chances of survival are remote, and cannibalism may be a literal necessity.  But while the defense of necessity may excuse trespassing, looting, and a multitude of other sins, murder remains beyond the pale.

* Law school famous is like internet famous but for law students and lawyers.

Mutants and Anti-Discrimination Laws, Part Two

In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was.  In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”

Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010).  An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.”  130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.

But the courts do not recognize new substantive due process rights lightly.  “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.”  Id.  However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.

So the questions are raised: are mutants a discrete and insular minority?  do they face systematic barriers in the political system?  do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection?  I think the answer to all of these questions is yes.  Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have.  Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state.  In at least one case it has even lead to the wholesale enslavement of mutants.  The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause.  Did any X-Men series ever address a court challenge to anti-mutant laws?  For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.

Mutants and Anti-Discrimination Laws, Part One

Discrimination against superheroes, particularly mutants, is a perennial problem in the Marvel universe, but there’s an argument to be made that the existing constitutional anti-discrimination framework would protect mutants.  First we consider the Equal Protection Clause of the 14th Amendment.  In a follow-up post we’ll discuss substantive due process.

The Equal Protection Clause of the 14th Amendment states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”  The Supreme Court has held that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest….The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Court has also held that other classifications (sex and legitimacy of birth) are subject to a heightened standard called intermediate scrutiny.  “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women….Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.”  473 U.S. at 440-41 (internal citations and quotations omitted).

“So far, so good,” you may be thinking.  After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority.  Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as mutants are generally equal to or superior to typical humans in every way.

Alas it is not that easy.  First, unlike the problems of discrimination on the basis of race, citizenship, national origin, sex, and legitimacy, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old.  A court may be unwilling to conclude that it is a problem unlikely to be rectified by legislative means without giving the issue more time to develop.  Second, from a legal perspective mutation would indeed bear a relation to an individual’s ability to participate in and contribute to society.  For example, one could easily imagine jobs that particular mutants could do much better than a typical human.   However, let’s continue with the Cleburne case for an example of the Supreme Court declining heightened protection to a class and see if mutation fits the mold.

The Cleburne case was about discrimination against people with mental disabilities (basically the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled).  The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed.  First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary.  Id. at 442. Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice.  Id. at 443. Third, the existence of positive legislation indicated that the mentally disabled were not politically powerless. Id. at 445. Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id. at 445-46.

So we can see that while some of this decision cuts in favor of mutants (the second and third points are lacking in the case of mutants), the first and fourth points cut against them.  Mutation is indeed a highly variable condition, and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Id. at 443.  And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne.  Given the Court’s current reluctance to embrace homosexuality as a suspect class, it’s questionable whether it would do so for mutants.  In the next post we’ll consider whether substantive due process offers a better argument.

The Multiverse and Res Judicata

In an infinite number of parallel universes, parallel versions of a supervillain will commit or attempt the same crime simultaneously only to be foiled by parallel versions of the same superhero.  Is there a good argument for trying the villain once and applying the verdict interdimensionally?  I think so, and in this post we consider the application of the res judicata doctrines of issue preclusion and claim preclusion to the Multiverse.

Many comic book series do not occur in a single, isolated universe but rather in a host of parallel universes, alternate dimensions, and Bizarro Worlds collectively referred to as the Multiverse.  Crossovers aside, both DC and Marvel series occur within their own respective multiverses.  For the sake of reference, the various parallel universes in these multiverses are numbered.  For example, the ‘normal’ world is Earth-616 in the Marvel Multiverse and Earth-0 or New Earth in the DC Multiverse.  There are an infinite number of such parallel worlds, most differing only in comparatively slight respects (e.g. the victory of the Axis powers in Earth-10; all of history up until that point was essentially the same).  So that’s the Multiverse.  On to the law.

Ordinarily, courts only like to consider a given issue or claim once.  This is done out of consideration of judicial efficiency, cost reduction, and finality.  The Supreme Court recently summarized issue preclusion thusly: “once a court has decided an issue of fact or law necessary to its judgment, that decision…preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case.” San Remo Hotel v. San Francisco, 545 U.S. 323, 336 n.16 (2005).

The Court summarized the distinction between the two doctrines in another case: “Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001).  The Court has also applied claim preclusion to criminal cases. United States v. Oppenheimer, 242 U.S. 85 (1916).

So what does this have to do with the Multiverse?  Consider Lex Luthor, plotting a dastardly scheme to stop Superman’s meddling once and for all.  As is so often the case, his plot will be foiled, and he will be brought to justice.  But Lex would have attempted the same plot in an infinite number of parallel worlds which differed only in ways that were immaterial to the plot and its prevention.  In the interests of cost savings, judicial efficiency, and finality, should the various Lex Luthors not be tried once, simultaneously, for all of them, both for criminal charges and civil claims brought against them?

The intuitive answer would seem to be yes, but there is a complication.  Which jurisdiction should be favored?  Or perhaps the better question is which jurisdiction should be forced into it, since that jurisdiction alone will bear the cost of the proceedings; it is not in any jurisdiction’s interest to volunteer.  But given the potentially infinite number of candidate jurisdictions, a random choice doesn’t make sense either: how can you fairly pick a number between 0 and infinity?

I think the solution is an Interdimensional Court of Justice, which would hear significant cases that would be too onerous for any one world to bear the cost of hosting or in which there would be a large efficiency gain in hearing the case only once.  A world that wished to have its version of a supervillain included in a case would chip in to help fund the IdCJ.  Since there could theoretically be an infinite number of such worlds, each world would only need to contribute an infinitesimally small amount.  Of course, coordination might be a problem.  In practice however, there only seem to be a few dozen parallel universes of any significance in the DC and Marvel multiverses, which makes the coordination problem much more manageable.

Batman and Patents

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

Batman’s use of gadgets developed by Wayne Enterprises poses an intellectual property strategy problem for the company.  Specifically, Batman’s public use of the inventions may actually prevent WE from obtaining patent protection.  Luckily, there’s a solution, albeit one that requires a little help from Bruce Wayne’s friends in the Department of Defense.

Batman is well known for his use of gadgets, many of which are based on advanced technology unavailable on the open market.  Some times these gadgets are explained as the product of Bruce Wayne’s own considerable intellect.  In other cases the gadgets have their origin with Wayne Enterprises R&D, perhaps with some modifications for Batman’s purposes.

Of course, Batman must always be ahead of the curve, so over time his gadgets have advanced to keep pace with technology.  The flip side is that over time gadgets and advanced technologies that were once exclusive to Batman fall into common use, perhaps sold by Wayne Enterprises.

And therein lies the problem, at least for gadgets that come out of Wayne Enterprises R&D.  Like many businesses, presumably Wayne Enterprises would seek to patent its inventions.  But Batman’s own use of the inventions in public may prevent Wayne Enterprises from obtaining a patent.  In the US, you generally cannot obtain a patent on something that was “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.”  35 USC 102(b).  This is known as the “on sale bar,” and it is a strict statutory bar to patentability.  So if Batman starts using a new Wayne Enterprises technology in a gadget more than a year prior to the patent filing, then he may have ruined the company’s chance at a patent.

Of course, Wayne Enterprises could always file for a patent before the one year grace period is up, but that would mean disclosing the technology to the public 18 months later when the patent application is published by the Patent and Trademark Office. 35 USC 122(b)(1)(A).  At most Batman would have 30 months in which to use the technology before supervillains could look it up online and start copying it (presumably supervillains are not concerned with patent infringement suits).

As Bruce Wayne, Batman could also keep the Wayne Enterprises technology to himself: using it in public–and thus destroying patentability–but also ordering Wayne Enterprises R&D to keep the technology on the shelf.  In the end Wayne Enterprises still loses, whether because competitors can copy the unpatentable technology or because the company is prevented from selling the technology.

So Batman’s use of Wayne Enterprise technology puts Bruce Wayne between a rock and a hard place: either harm the company that indirectly finances his heroics by using the technology in public or concede a round of the technological arms race by allowing the technology to be disclosed in a patent.

You might be thinking that all this talk of “public use” is a bit silly.  After all, Batman isn’t exactly walking around giving public demonstrations of his latest gadgets, much less explaining how they work.  The patent laws, however, take a broad view of what constitutes public use.  It was long ago established that it is enough that a single instance of the invention was used by a single person in public, even if the device itself and its method of operation were not visible (e.g., a hidden piece of armor beneath Batman’s costume).  Egbert v. Lippman, 104 U.S. 333, 336 (1881).  The purpose of the on sale bar is to induce inventors to disclose their inventions early; if the invention works well enough to use it in public, then it works well enough to be patented.

There is an exception to the public use bar for experimentation, but it is a narrow one, and it may not be practical in this case.  In general the exception requires that the experimentation be done by or at the direction of the inventor as part of the development and testing of the invention.  City of Elizabeth v. Pavement Co., 97 U.S. 126, 134 (1877).  Although Batman often uses gadgets that are not yet fully developed, it is doubtful that Wayne Enterprises would call Batman to the stand to testify that he was using a new gadget at the behest of a Wayne Enterprises scientist in order to test its performance under real world conditions.

Furthermore, the experimental use exception also requires that the testing necessarily be in public, such as in the case of a new pavement material.  Id.  But most if not all of Batman’s gadgets could be tested in a lab or other testing facility.  It’s hard to argue that it’s necessary to test them on actual supervillains and criminals

But now you might be saying: if Batman keeps his use of the gadget secret, and the criminals he catches don’t understand or even notice the new technology, how will this ever be a problem in practice?  Who’s going to snitch?  I think there are two major possibilities.  First, Batman doesn’t always have the luxury of operating in the shadows.  Sometimes he works in public, and cameras and bystanders may observe new technology in use.  But the second and more serious problem is that Bruce Wayne himself and possibly other Wayne Enterprises employees (e.g., Lucius Fox) know of Batman’s use of the technology.  Would Bruce Wayne really be willing to break the law in order for Wayne Enterprises to make more money?  Or would he choose for the company to forgo a patent in order to keep crime-fighting technology secret a while longer?  I think he would probably choose the latter.

There is hope, however.  Patent applications that include classified information are not published until either a set time period has expired or the secrecy order has been lifted. 35 USC 181; MPEP 120.  But neither do such applications mature into patents; effectively they are held in limbo while they remain classified.  So if Bruce Wayne could convince, say, the Department of Defense to classify a given technology, then Wayne Enterprises could apply for a patent early on, Batman could use the technology, and once the time was right the classification could be lifted, the patent could issue, and Wayne Enterprises could make a lot of money.  Given that Wayne Enterprises does a lot of work for the US military, this is a plausible solution to the problem.