Immortality and the law

Is being immortal illegal?

Probably not as such, but living longer than the standard three-score and ten, as many superheros in both major multiverses are wont to do, does create some interesting legal issues.

I. Successive alter-egos

As a preliminary matter, if our immortal has decided not to make his immortality known to the general public, he’s going to need an alter ego, some of the difficulties of which are discussed here. But being immortal adds another wrinkle: you’re going to have to do this on a regular basis. You’ll basically have to ditch your original identity once it becomes clear that you aren’t aging, and then you’ll probably need to do it again every ten to twenty years to avoid the obvious “Why haven’t you aged in the last decade?” sorts of questions. This means completely severing ties with people who don’t know your true identity and coming up with a completely new alter-ego, from scratch, every decade or two.

That compounds the difficulties, because in addition to the standard this-is-a-fraudulent-activity-anyway problems, you’re now replacing a fictional identity with another fictional identity. The odds of someone noticing something strange don’t go up with repeated brushes with the law.

In pre-modern times, this wouldn’t actually have been that big of a deal. Public records were basically non-existent, and proving that you were who you said you were was not really something the law looked too closely at. But with the advent of modern recordkeeping and property registries, this becomes much, much more difficult.

II. The Rule Against Perpetuities

Immortality also raises the specter of a now mostly abandoned feature of property law doctrine which is nonetheless used to torture first-year law students to this very day, the Rule Against Perpetuities. The RAP dates back to early-modern England, when it was realized that aristocratic families were so encumbering their properties with conditions on inheritance that it was becoming impossible to transfer good title to vast swaths of the countryside. In response, the courts imposed a rule that no interest was valid unless it could “vest,” i.e. become a present interest in a living person, within twenty-one years after the death of some person alive when the interest was created. In short, you’re allowed to create interests which vest in your kids, but you can’t perpetually encumber your property such that your grandkids won’t have clear title to the property.

What exactly are we talking about? Well consider a family farm. Say mom ‘n pop are sentimental about the farm, so they leave the farm to their son but put some conditions on it, like so: “To our son, we leave the family farm, but if he ever stops using it as a farm like we did, the farm will revert to the estate.” That would be permitted by the Rule Against Perpetuities, but an attempt to pass that restriction on to their as-yet-unborn grandchildren would probably not.

A lot of states have abandoned the RAP, as hereditary land dynasties are no longer de regeur, and simply administering the RAP was a pain in the neck. Law students are still taught it, more often than not, but no one really runs into this in practice.

Which in the context of any of the comics multiverses wouldn’t necessarily matter, as immortality would play merry hell with the property law even with the RAP. An immortal could easily put all sorts of restrictions on property he sells over the course of his unnaturally long life, creating right of reentry in himself. And because he isn’t going to die, that land would never, ever be able to used for something he didn’t permit, because it is impossible to grant better title to land than you yourself possess, ergo any restrictions placed by an immortal would remain on the property forever. This is clearly less than ideal, and though most superheros would persumably not be dicks about this, one can easily imagine a supervillain really mucking things up that way over time.

III. The Fee Simple and Alter-Egos

But that aside, the actual nature of the fee simple also presents some problems. In normal society, a person accumulates property slowly over the course of their lifespan, perhaps inheriting some from their parents, and then passes whatever they haven’t managed to spend on to their children. It has been this way for all of human history, and even though some families manage to accumulate more wealth than others, but even the longest dynasties die out after a while. The House of Habsburg was the most powerful family in Europe for almost four centuries, but none of its heirs currently occupy any positions of particular influence, and their wealth pales in comparison to newer fortunes. The natural cycle of life and death has ensured a more-or-less orderly transition of property from parents to children since the dawn of time.

But an immortal person could simply go on amassing property forever. The perpetual nature of the fee simple and the power of compound interest mean that even starting from abject poverty, an immortal person could become quite wealthy in a century or two and could become one of the wealthiest in the world if given a thousand years. Exactly why Apocalypse didn’t simply buy every last scrap of available real estate as it came up for sale over the millennia is probably because that would have been boring, but as the best form of land use control is ownership, any number of nefarious plots would be a lot easier to pull off if you just bought the damn planet.

This presents two problems. The first is with anonymity, i.e. creating and maintaining a fictional person who is really one of the richest people in the world just doesn’t work. An immortal who wished to remain largely anonymous would find it difficult to do that while maintaining any significant level of wealth, contributing to the other problems with maintaining an alter-ego. This is not an entirely academic point, as at least some degree of wealth will be necessary to avoid being forced to get a real job. There’s a reason Batman, Tony Stark, etc. have playboy-billionaire alter-egos: it explains how they can afford to spend all of their time running around in exotic suits chasing villains. Being Batman is cool and all, but one of the defining characteristics of being a vigilante is that no one is paying you to do it.

Then there’s the simple fact that owning property requires interacting with it on some level, even if only through intermediaries, and the odds are decent that over the course of maintaining a financial empire, someone is going to notice that you look exactly like you did fifty years ago. Again, if you’re public about your identity, that’s fine, but if you aren’t, this will cause problems.

There are two obvious practical solutions to this issue. The first is to assume that being a superhero is really expensive, which it may well be. Batmobiles don’t come cheap. But Wolverine doesn’t seem to need much more than clothes, motorcycles, and beer to do his thing, so that isn’t a universal solution. The second is to simply be in the business of giving away lots of money on a regular basis so as to avoid accumulating more than a modest fortune. That’s risky–even real estate is no guarantee of future income–but it is potentially workable.

Of course, there’s always the option of faking your own death periodically–or actually dying–and either becoming your own heir or picking up a new, fabulously wealthy patron. That or a continuity reboot.

The second problem with adding immortality to the fee simple is that unless an immortal actually conquers the world, it seems doubtful that he would be permitted to acquire property ad infinitum. Someone is eventually going to notice. Then a bunch of someones, including various state actors, and there’s a good chance the latter will be pissed. Authoritarian governments certainly wouldn’t permit a private citizen to own large chunks of their real estate, and even democratic governments would probably wind up reaching a point where enough is too much. This would raise interesting Fifth and Fourteenth Amendment issues. Seizing or interfering with property interests generally requires compensation under US law, and trying to carve out an exception for that for immortal people who are just too damn rich would raise interesting Equal Protection and discrimination issues, some of which have been discussed elsewhere. But if political pressure were strong enough, the courts and/or legislature would presumably make something up.

IV. Conclusion

So again, while being immortal doesn’t appear illegal as such, it does make keeping a low profile a bit more difficult, and the law would probably wind up making an attempt to literally capitalize on immortality more difficult than it sounds.

43 Responses to Immortality and the law

  1. I think the government has a pretty simple solution to the “immortal being slowly accumulates all the available real estate” problem: antitrust law. Normally it would be impossible to have sufficient market power in the market for real estate to raise antitrust concerns, but an immortal being could do it. Analogous to the rules regarding media outlets, the government could bar an immortal being from accumulating more than X% of the land in a given market (e.g. metropolitan area).

    What’s more, the courts could decide that outright discriminating against immortal beings is really a form of age discrimination rather than mutant status discrimination. Age discrimination is subject only to rational basis review. “States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” Kimel v. Florida Bd. of Regents, 528 US 62, 83 (2000). Regulating the real estate market is definitely a legitimate state interest.

    However, part of the rationale for that classification is that “old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it.” Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314-14 (1976) (per curiam). That reliance on the normal life span breaks down when talking about immortal beings, but it may not be fatal to the classification. An interesting question that may become important in the near future if significant life extension techniques (i.e., living past ~120) become available to some but not all.

  2. I considered the antitrust angle, but the critical element to antitrust statutes as currently written (15 U.S.C. 1-2) is a contract engaging in a conspiracy or combination in restraint of trade. As those by definition require at least two people, “But I did it all by myself, your honor!” could actually be a viable defense. It is illegal for two persons/companies to conspire in restraint of trade, but a single person? Slightly different.

    Furthermore, an immortal who simply buys everything in sight over a period of time but who doesn’t actually engage in restraint of trade, i.e. he’s reasonable about leasing his property but still getting dangerously rich, might not trigger said statutes.

    All of which suggests that antitrust statutes would simply have to be amended to encompass someone just outliving the hell out of everyone, but then we get into the potential discrimination issues you mention.

    • As a point of fact, governments don’t actually seem to do much about people who accumulate dangerous amounts of wealth *in the real world*. Holding all the property under a series of alternate and false identities could be a problem, as noted, but if the person simply owns vast amounts, and especially if they allocate a reasonable percentage of the annuities from any investments to political campaign contributions, the worst that would happen in most countries is periodic moves to institute a special wealth tax for those who will never have descendants paying estate taxes. The perpetuity thing seems like a non-starter, as well – either the property never passes out of the original owner’s hands, in which case nobody’s placing conditions on anyone, or the immortal passes it on to another of their own identities, in which case there’s no need to place any conditions on it.

  3. I would think that the difficulties spelled out above would be the reason that immortals aren’t fabulously wealthy; they’ve got too much to lose if they come to someone’s attention for it.

    Another solution, though, might be that old villain stock-in-trade of having a multi-generational family, or village, to serve you. All the titles would pass from mortal to mortal, with everyone understanding that you’re still the boss.

  4. Good point about antitrust. I think outright taxation would be another route. The tax power is extremely broad, and progressive taxation has expressly been held constitutional. Thorne v. Anderson, 240 US 115 (1916) (companion case to Tyree Realty v. Anderson); Brushaber v. Union Pacific R. Co., 240 US 1 (1916). So if an immortal becomes “dangerously rich” then the states or Congress could simply tax the hell out of him or her. That might have the added advantage of avoiding discrimination concerns, since theoretically an amazingly savvy but mortal businessperson could accumulate similar wealth in his or her own lifetime. For example, John D. Rockefeller’s fortune was about 1.53% of the total US economy at its peak, or $392 – $663 billion in modern dollars.

  5. Of course, one solution is to put all of the assets into a trust and change the beneficiary as you change identities. Put a few regular mortals into a (short) set of beneficiaries and it might be pretty hard for outsiders to figure out what’s going on, especially if the immortal is also the trustee.

  6. One of the main problems with creating alternate identities is documentation–but that’s a problem mainly because a good, deep background requires a lot of work to build up a phony history. An immortal would have the luxury of building a lifetime’s worth of false documents over a mortal lifetime. He obtains a birth certificate today for the identity he’s assume in 30 years and puts it away in a safe deposit box. He creates (or has created by people he’s bribed/threatened/persuaded to help him) other appropriate documents for the various stages in his alternate persona’s life. When he’s ready to fake his own death and become someone new, he’s got an entire background ready to go and all the documents are as old and well-established as he needs them to be.

  7. You point out one of the problems with immortality is the maintenance of an identity which would call out the individual through the observation that this person does not age. There is a way to maintain an identity, however, whereby this person can stay in power without too much notice: Incorporation.

    Presumably, the assets of an individual could be converted into a business entity which would be under corporate governance, where the level of scrutiny is less than for personal assets. A corporation that stays private, avoiding an SEC filing, could do business through meeting the requirements of their charter and bylaws without undue attention, allowing for the immortal to draw on expenditures from the corporation without drawing attention, through trusted intermediaries (say, if our immortal was a vampire, through ghoulish minions) much the same way Howard Hughes conducted his business in the last decade of his life.

    And if you really want to press it, incorporate in Delaware FTW…

    • Okay, incorporation is a possibility, but there are two problems there.

      First, corporate entities as such have only existed for a couple of hundred years, and modern incorporation statutes only go back to the nineteenth century. In fact, before the 1844 passage of the Joint Stock Companies Act, incorporation in the United Kingdom was only possible by direct royal charter. Not exactly a low-profile activity, that. The first US statute of a similar nature was passed by New Jersey in 1846; before that, incorporation required an act of the legislature. So while a modern immortal could probably incorporate and hide a certain amount of his activity that way, most comic books of which I am aware are set in roughly contemporary circumstances rather than centuries after the twenty-first. No one, immortal or not, was going to be able to use incorporation to amass superhuman wealth by increments since the dawn of time. The law just didn’t support that kind of thing.

      Second, though there are thousands of minuscule corporations running around out there, most of them don’t have any significant pool of assets. Managing corporate assets requires employees, directors, etc., and someone would eventually notice that something a bit unusual was going on. This is especially the case given that significant transactions usually involve the presence of corporate principals, and the absence of the major shareholder at all major transactions, again, is going to raise eyebrows.

      That second point could be potentially addressed with the enthralled village suggested above, but you still wouldn’t be able to expand much. The village could probably keep you hidden if you were content to basically own the village and nothing else, but a world-spanning financial empire? Not gonna happen.

      • It’s true, we are talking about using incorporation as a means of shielding assets going forward; I probably should have made the point clearer in the initial post. In terms of visible asset management before the mid-19th century, you are going to have to find other means, and yes, maintaining wealth without scrutiny is going to be difficult if you are going to move beyond a limited area, something about the size of say Brigadoon…

        Which leaves the immortal with great wealth and extreme publicity shyness the option of the Big Secret. Throughout history, there have been references to agencies cited that supposedly controlled considerable resources out of sight behind the scenes. The Knights Templar, the Prieure di Sion, the Cathars, the Illuminati, all were assumed to have both considerable liquidity and the right connections to allow it to transfer funds where needed.

        If our immortal individual wanted to retain valuables, there would have to be a lot of subterfuge going on, and the expectation that there would be a high attrition rate over time as the right money changers/bankers/wealth managers were periodically “encouraged” to keep the bulk of assets out of sight. One could argue that a potential immortal who was more desperate to hold on to resources than someone complaining about the inheritance tax would be tempted to consider incorporation after centuries of “gifting” various agents, if for no other reason than to keep from seeing ten to twenty percent of all asset growth per year going to someone else.

      • Yeah, all of those are potential options, but they do kind of rule out being a superhero, either in the “all around upstanding citizen” or the “actively combats crime and evil” sense.

  8. Ryan has a point. However, as public identity records weren’t really something that needed to be kept until even the mid-20th century in some places, it wouldn’t have been too hard to switch to incorporation at that point to maintain anonymity.

    In addition, an immortal with huge resources could presumably influence governments around the world just enough so that there was always a set of countries where they could hide themselves behind the local legislation. They’d probably have a large and extraordinarily tangled (and constantly shifting) web of influence and money, allowing them to assume identities and access resources at will.

  9. Not relevant to this particular post…

    As a law student I feel compelled to tell you that this is the best legal blog of all time. Ever. Case closed.

    – Matt

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  11. > Authoritarian governments certainly wouldn’t permit a private citizen to own large chunks of their real estate, and even democratic governments would probably wind up reaching a point where enough is too much.

    Quite true. We have already seen multiple immortal agents accumulate too much wealth and be destroyed.

    I refer of course to religious examples like the Knights Templar (obliterated and assets seized) or the Catholic Church (all English assets seized).

  12. Also we need to consider the tax implications. Should you be retroactively taxed for income earned while you were dead?

  13. Companies are considered people. Does a company have a life span? Just curious how the first years tackle that?

    • Corporations aren’t considered people in every way. They can’t vote, for example, nor can they run for elected office. The precise details are beyond the scope of this blog.

      What do you mean by life span, exactly? Corporations do have a ‘birthday,’ namely the date of incorporation, so they also have an age. Do you mean a maximum age? Most corporations are chartered indefinitely, but in some states (Missouri is one) the articles of incorporation can specify a duration, though of course the articles of incorporation can be amended later.

  14. So corporations can own property indefinetely… correct?

  15. There was an interesting movie related to this, “The Man From Earth.” The main character living present day looks about 30 or 40 but is actually immortal, he gets a new identity before people start noticing. The whole movie is him coming out and telling his current friends why he has to leave.

    –Sorry mods I posted this twice, I clicked the notify me of follow-up comments on this one.

  16. So **Dole can own Dole Islands forever, so long as the Dole Corporation exists. And can pretty much do whatever they want on said properties.

    **Using ‘Dole’ as a generic common identifiable and not as an actual conspirator.

    And said immortal could conceivably create a corporation, and use his likeness as a corporate mark…

    Therefore… Uncle Ben is in fact.. a super hero.

    • It breaks down when you talk about doing “pretty much whatever they want on said properties.” Almost the entire world is claimed as sovereign territory by some country or other, so the company would still be subject to somebody’s laws somewhere, although that doesn’t necessarily mean much in some places. (There are some interesting exceptions that we may explore as possible supervillain lair locations).

      But using a corporation only moves the ball around. Yes, the corporation can own property indefinitely without raising any eyebrows, but the immortal has to own the corporation. It’s an improvement, but it’s not perfect.

      One possibility might be a Swiss bank or series of Swiss banks. Although their secrecy has weakened somewhat in the past few years, they did not have their reputation for nothing. But of course an immortal would have to predict that investing his money with a Swiss bank hundreds of years ago was going to work out in the long run.

  17. I suppose the immortal could just dig a hole someplace, and drop a gold bar down it periodically… Probably more than one hole, in different places, just to be on the safe side. Aside from little glitches like when the Spanish conquered the Aztecs, gold has been a remarkably reliable long term store of value over the centuries.

    True, this wouldn’t permit you to accumulate interest.

    Robert Heinlein actually addressed most of these issues, in the context of his “Methuselah’s Children” stories. If you have a *group* of immortals, it becomes simpler, because they can all vouch for each other’s new identities. Making your current identity age can be handled to some extent with makeup, hair dye… The invention of Rogaine made things easier, because you can stop shaving your head, and brag about how effective it was.

  18. Interesting analysis. Regarding the RAP, would this really pose a problem? Supposing an immortal lives life out publicly (Situation 1), a court could just decline to enforce the provisions of the conveyance, because it is onerous and contrary to public policy.

    Now, this poses significantly more problems if he chooses to live incognito (Situation 2), which I suppose is the thrust of the argument. But after so many years, say, 50, a court would recognize that, hey, this person has been alive for a really–suspiciously–long time. And then the situation just reverts back to (1) above, unless he had the foresight to create remainders or rights of entry in his alter ego (the one that will survive past his current main identity). I assume, however, that doing this would be non-trivially hard.

    And don’t we have mechanics to deal with this anyway? Assuming our immortal isn’t hyper-vigilant, I wonder if you can adverse possess against the property (I wonder if adverse possession can break fee determinables).

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  20. Immortality may not be illegal, but it is unconstitutional if the immortal has artistic proclivities. Why? Copyright. The Constitution gives authors (and impliedly, superheroes) a monopoly on their own artistic works, but only “for limited time.” In theory, this limited grant is meant to balance the need to encourage expression against the desire to have information freely available. Under current law, the term of copyright is the life of the author plus 70 years. But if the author’s life were endless, the term would be unlimited, and the Copyright Act would be in violation of the “limited time” provision of the Copyright Clause. Copyright already lasts much longer than necessary to encourage mortals to create expressive works, thanks in no small part to Mickey Mouse and the Copyright Term Extension Act. Given the threat immortals would pose to the legitimacy of long copyright terms, I suspect Disney goes to great effort to keep young minds from imagining that artistic immortals exist!

    • This assumes that said immortal is considered (a) alive, which depending on how this individual shuffles along the mortal coil could be an issue of contention, and (b) an individual, again depending on whether the form of existence supports that definition. If the immortal fails either test, then under CTEA the entity that created the work would have the piece fall under the definition of corporate authorship, which sets a fixed term of 120 years after creation or 95 years after publication, whichever comes first.

      • Really, all that’s needed is for the immortal to point out that he or she just hasn’t died *yet*, and depending on the nature of the immortality may still die at some time in the future, in which case the 70 years countdown would start. True immortality would be rather difficult to prove, since it’s essentially proving a negative (this person will *never* die).

      • Scott had the same thoughts I do on it. Immortality might be a pain, but I can’t see a government finding a good way to prove I won’t die. The only way to do that would be to kill, and killing someone just to prove they can die is something I don’t think people would stand for.

  21. This raises a few interesting possibilities: If said immortal had an IP that was considered very valuable, say possibly something that spurned a few billion dollars in sales, and this individual gave the “Just gimme a damn minute!” defense above, who’s to say that some parties might not be willing to hit the “start” button by seeing just how immortal that individual was…?

    And then there’s the motive for wanting to see something go PD; who best would want said property to lose the original protection? Perhaps yet *another* immortal who decides that the best way to get back at his or her rival is to be there when the protections are gone and have one hell of a field day playing with it…?

    And if not that, then perhaps other challenges could come from groups of individuals who would every few years try and make that immortal’s unending life hell with nuisance suits that drain resources every few years, dog piling on that immortal, continually hounding until and unless said individual signed away the rights, or at least declared them PD early in order to get a piece of / get back at the creator…

    If that ever happened, watch IP law become even nastier than matrimonial…

  22. Interesting aspect on the Dalai Lama, no? If theoretically, the Dalai Lama is a reincarnation of the next, inheritance would go to him regardless of bloodline. Although a tradition of self-imposed poverty helped.

    It also may explain why his position anathema in Maoist ideology.

    Just ramblin’ thoughts…

  23. Criminal law has only briefly been touched on above, but I imagine most immortals would be very aware of statutes of limitations – especially crimes without them. There are still prosecutions going forward against former Nazis. Also, I’m fairly certain that the International Criminal Court has not placed a statute of limitations on genocide, making it awkward for any immortal who took part in the conquest of Mexico, for example (of course, proof of any crimes might be difficult to come by).

  24. One must remember, when discussing immortality, that there are around a dozen different kinds of it: Perfect, Undying, Regenerative, Resurrective, Undead, Sole, External, Legacy, Parasitic, Vampiric, Projected, and Non-Diegetic.

  25. The only non-government organizations that currently exist that could be fronts for an immortal being are religions. The leading candidate is of course the Catholic Church followed (with lower probability) the Mormons and then (even less likely) the Church of Scientology.

  26. The original Highlander movie had an immortal Connor using multiple identities and transferring property through the years, and of course someone figuring out that they were all the same person pretending to die.
    In the Highlander TV series there was an episode where Duncan is in an old bank with a passbook to collect on money and interest deposited by an :ancestor”.

    • That case occurred because Connor was careless. If he had used intermediaries, not spelled his name precisely the same way each time and maybe used more secretive services (such as the Swiss) he could possibly have managed to avoid that for many more decades.

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  29. What happens if an immortal is sentenced to life in prison?

    • What happens if the immortal is sentenced to death?

      • His sentence would be void if they are unable to come up with a way of killing him (or can, but the method is considered inhumane). In which case he’d probably be given a lengthy sentence.

        Life sentences on immortals would probably be subjected to endless perpetual appeals. He might end up getting his sentence squashed at some point (esp. if they don’t know he’s immortal when locking him up), or outlive the state that imprisons them. Its enforceable, but it might be seen as a violation of their rights, and either way its highly unlikely they will never, ever be released at some point, though it might only be given out to the absolute biggest monsters in history so maybe not.

  30. What if an immortal incorporated and created a business similar to Kongou Gumi?

    http://en.wikipedia.org/wiki/Kong%C5%8D_Gumi

    That company was run by the same family for 1400 years. If I adopted children and stayed in the shadows as a puppet master, wouldn’t that be an effective cover?

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