Monthly Archives: January 2011

Supervillains and the Insanity Defense

The fact that it is possible to defeat a criminal charge by pleading insanity, even temporary insanity, is a permanent fixture of American crime storytelling, and comic books are no exception. The Joker, the Riddler, Poison Ivy, Two-Face, all have spent time in the Elizabeth Arkham Asylum for the Criminally Insane.

But is that really how it works? Actually… no. The insanity defense is fairly well-defined, and depending on the jurisdiction it seems like that a lot of supervillains would not actually count as “insane” in a way which would prevent their convictions.

Note that what we are talking about here is only whether a person can avoid conviction by virtue of insanity, not whether they are competent to stand trial. That requires a different analysis and one for another time.

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The Green Hornet

The new Green Hornet movie came out this weekend, and it’s… just okay? Something like that. Again, not reviewing this as a film critic as much as a legal critic, and it’s surprising how much this movie gets both right and wrong, sometimes on the very same issue. This time we’re going to focus mostly on two legal issues which explicitly show up in the film: sexual harassment in the workplace and a peculiar little wrinkle related to self-defense.

As always, spoilers follow.

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Law and the Multiverse Mailbag III

Today we take a look at reader questions involving the Patriot Act, Bruce Wayne’s funding of Batman, and revealing superhero costumes.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

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Law and the Multiverse on SciFi Surplus

We were featured on the SciFi Surplus podcast with Vince and Casey.  We had a great time doing the interview, and we think you’ll enjoy listening to it.

Superpowered Minors, Part Three

In prior installments of this series, we looked at criminal and contract liability for minors.  Today we look at minors and torts.  The rules here are fairly straightforward, but there are different rules for each theory of liability (e.g. intentional misconduct, negligence).

Although many torts resemble crimes, they are still civil wrongs.  Thus, the aim of tort law is to compensate the plaintiff rather than to punish the defendant, except in egregious cases.  This is why, as we shall see, minors–even very young ones–tend to be more liable for torts than they are for crimes.  It may do no good to punish a five year old for a crime, since the child may not understand the crime or the punishment, but if there has been an injury then it is only just and fair to compensate the victim.  That’s the theory, anyway.

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Non-Human Intelligences I: Introduction

One of the most common questions we get is how the law would treat a genuinely non-human intelligence. Such characters appear with regularity in most of the major comics universes. The DC universe has Superman and various other Kryptonians as well as Gorilla Grodd, etc. Marvel has described entire galactic empires, including the Shi’ar and Skrull. Both universes include intelligent machines of various kinds.

This is a big subject, and as there is currently no law on the books which would directly answer this question, finding an answer is going to involve at least as much philosophy and history as it will law. But it is an important question, so we will consider it here.

This is likely to be the first in a series of posts. Most of the consideration of actual examples will be in later posts; this one attempts to set the stage for such questions by examining the reasons for and history of human beings’ rather unique status in the legal system.

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Superpowered Minors, Part Two

In the previous installment of this series we discussed minor superhero and supervillain criminal liability.  Today we’re going to talk about the contract liability of minors.  Unlike crimes (and, as we shall see, torts), minors are often able to escape contract liability.

I. The General Rule

The common law rule is that “minors have the capacity to contract, at least when of sufficient age to understand what they are doing, but in general, they have the right to repudiate their contracts.”  42 Am. Jur. 2d Infants § 39; See, e.g., Hoblyn v. Johnson, 55 P.3d 1219, 1230 (Sup. Ct. Wy. 2002).  In other words, a minor can enter a contract (and sue for breach), but in general he or she can also get out of the contract if he or she wants to.

Now you might think that this is a bit unfair.  For example, what if an upstart supervillain contracts to buy a freeze ray, receives it, stiffs the seller, then repudiates the contract? The answer is that the supervillain has to give the freeze ray back if he or she wants to avoid the contract.  See, e.g., Nelson v. Browning, 391 S.W.2d 873, 877 (Sup. Ct. Mo. 1965)  The law may be stupid sometimes, but it’s not that stupid.

There is, however, a twist.  What if the freeze ray was smashed in an altercation with a superhero?  In that case the seller is out of luck.  “If during infancy he has wasted or squandered the consideration, or has otherwise made away with it so that he is unable to restore it, he may nevertheless repudiate the contract without making a tender.”  Id.

So why not require the kid to pony up the cash equivalent instead of getting away free and clear?  Because “the privilege of repudiating a contract is accorded an infant because of the indiscretion incident to his immaturity, and if he were required to restore the equivalent where he has wasted or squandered the consideration received, the privilege would be of no avail when most needed.”  Id. at 877-78.  In other words, it’s all well and good to demand one’s freeze ray back because in a sense that doesn’t cost the kid anything, but giving back the cash equivalent would essentially be an enforcement of the contract since it would come out of the kid’s own pocket, which kinda defeats the point of the rule.

However, some courts have taken the view that merely selling or exchanging the received goods for something else doesn’t count.  In other words, if our young supervillain exchanges the freeze ray for a heat ray of equal or lesser value, then in some states he might still be liable to return the heat ray (assuming he’s still got it and it hasn’t been smashed up, of course).  See, e.g., Whitman v. Allen, 121 A. 160 (Sup. Jud. Ct. Me. 1923).  And some courts depart from the general rule entirely and take the view that the minor is in fact liable for the value of the consideration received, even if the minor has to pay the cash equivalent out of pocket.  See, e.g., Porter v. Wilson, 209 A.2d 730 (Sup. Ct. N.H. 1965).

The upshot of all of this is that entering into contracts with minors isn’t terribly wise most of the time. This why most contracts involving minors require the signature of a parent or legal guardian.

II. Some Exceptions

The major exception, extending back to the common law, is that a minor can be bound for a contract for “necessaries.”  Necessaries are not precisely defined in most jurisdictions, but as a rule of thumb they are things like food and shelter that the minor actually needs and actually uses.  For example, a hotel room is not a necessary when a minor has access to a perfectly good home, but if the minor would otherwise be stranded outside and does indeed use the hotel room, then that’s a necessary.  As you can imagine, this would mostly apply to the practical requirements of a young superhero or supervillain living on his or her own; the rule wouldn’t apply to something like a freeze ray, since nobody really needs one.

Note, however, that the liability for necessaries is generally limited to the reasonable value of the good or service, not the contracted price. See, e.g., Williams v. Baptist Health Systems, Inc., 857 So.2d 149 (Ct. Civ. App. Ala. 2003).  This is because the liability for necessaries is not based on contract but rather quasi-contract, the distinction between which is beyond the scope of this post.

Of course, the common law can be modified by statute, and in many states it has been.  For example, in California a minor cannot make a contract relating to real property (i.e. real estate) or make a contract relating to personal property not under his or her immediate possession or control.  Cal. Civ. Code § 6701 (2009).

Finally, things get especially complicated when you consider cases where a person makes a contract while a minor but then seeks to repudiate it after turning 18.

III. Conclusion

The rule that minors may be liable for their torts, responsible for their crimes, and yet often not liable for their contracts may seem a bit unfair.  The practical conclusion is for adults to be wary of contracting with minors, and indeed this is why many legal actions require a parent or legal guardian to be involved (NB in such cases it is the adult who is bound, not the minor).  But in the right jurisdiction, a wily young supervillain–especially one able to project the appearance of adulthood–might be able to abuse this defense for fun and profit.

Immortals and Compound Interest

A number of people have asked, both in comments and in emails, why compound interest isn’t the solution to all of our immortals’ money problems. It’s not a bad question, and it’s shown up in a number of places.

It turns out that this isn’t nearly as workable a solution in practice as it is on paper. There are two main reasons for this. The first is historical, and the second economic, but together they conspire to make living off your interest a little harder than it sounds.

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Superpowered Minors, Part One

One topic that we’ve been asked about by several people is the issue of superpowered minors, whether acting as superheroes or supervillains.  There are many examples, such as the Teen Titans, young mutants like Kitty Pryde, and Spider-Man (in his younger days). This post, the first in a series, is about the minors themselves and their criminal liability.  Future posts will cover torts and contracts.  The legal issues involving their parents, guardians (like Bruce Wayne), and school teachers (like Professor X) will also be addressed in future installments.

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Supers and Social Security

Almost every American old enough to read has at least heard of Social Security, and with good reason: it’s been a massive part of the United States’ social safety net for three quarters of a century. The program is so ubiquitous that Social Security Numbers (“SSNs”) have become one of the primary ways that United States citizens identify themselves in official proceedings and transactions with the government.

So how would the community of superheroes and other meta-humans interact with this massive legal edifice? A lot of that is going to depend on just how open a character wants to be about their identity.

I. Social Security Numbers

One’s SSN is intimately connected to one’s legal identity. It is a unique identifier associated with one’s legal status, and without one (or a Taxpayer Identification Number), the federal government isn’t necessarily going to be totally sure that you exist, bureaucratically speaking. It’s how taxes are tracked, and it’s very difficult to engage in even the most routine government transactions without one. The statute which creates them is 42 U.S.C. § 405.

All of which conspires to make the SSN an essential part of constructing an alter ego. Of course, forging them is a crime, and just running the numbers there’s a one in three chance that whatever number you just make up is going to be currently in use by someone else (though it’s actually even greater than that given the rules for valid SSNs).

II. Taxes

The other completely ubiquitous part of Social Security is taxes. Social Security taxes are imposed by the Federal Insurance Contributions Act, better known as FICA, and codified at 26 U.S.C. §§ 3101—3128. At the moment, the Social Security tax rate is 6.2% of gross income, plus another 6.2% contributed by employers, so really 12.4%, only you never even see half of it. The self-employed must pay both halves out of their own pocket, hence self-employment taxes, but the difference is more one of perception than reality.

Either way, if you make money by working, i.e. you earn a wage or salary, the government wants its cut, and the IRS doesn’t much care who you are. To quote the Joker from a late Golden Age/early Silver Age story, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” If you’re earning money, and it’s more than a couple of grand a year, the IRS will eventually find out. So unless a character is independently wealthy–which means he’ll be paying taxes in other ways, just not FICA–it’s going to be very, very hard to evade Social Security taxes for very long.

III. Benefits

Then there’s the question of benefits. Right now, every American over the age of 67 (lower in some cases) can collect old-age benefits. Fair enough. But the actuarial tables for calculating benefits, taxes, budgets, etc. are predicated on most people dying within a decade of their seventy-fifth (or so) birthday. Wolverine could theoretically have been collecting Social Security–assuming he got his citizenship status worked out–almost since the program was inaugurated!

This is problematic for two reasons. One, when the government is cutting you a check every month, that’s one more month where someone might notice that you’re still around. A situation in Japan where hundreds of elderly people collecting old-age pensions were discovered to be missing, sometimes for decades, illustrates that while the machinery of bureaucracy does have a lot of inertia, people living beyond their nineties is still quite unusual and does raise red flags. (It also may help explain why the Japanese life expectancy is so high; maybe they simply aren’t recording deaths. But that’s neither here nor there.) So a character who is either immortal or has a longer than normal lifespan will almost certainly get noticed sooner or later. Whether or not the character minds is dependent upon the facts of their particular story, but this could be problematic for many characters.

But second, Social Security was intended as a sort of last-resort measure to prevent the elderly from becoming destitute. It doesn’t really work that way anymore, as those people who have to rely solely upon Social Security pretty much are destitute, and plenty of people who don’t need the money at all still collect benefits for decades, but that’s still the theory. The discovery of a group of people who aren’t going to die at all, or who at best are going to collect benefits for fifty plus years is likely to encourage Congress to take a long, hard look at establishing some kind of limitation on the ability of people to collect benefits forever. Depending on just how bad the budgetary situation is at that time, this could be as little as a fix to exclude the truly immortal or as draconian as limiting benefits to three decades for everyone. But some kind of Congressional action does seem pretty likely, and the existence of immortals among us might just be sufficiently distressing to the American population to give Congress the inertia it needs to actually do something about the program’s bleeding balance sheet.

The fact that even in the stories that contain the largest number of immortal beings–Highlander, anyone?–there are little more than a few hundred in the entire world is not likely to mitigate this fear either. The American media and populace are terrible at issues of scale. This, of course, is just one more reason immortals might want to keep their existence hidden, which means taking pains to conceal their longevity and identity. Simply declining to accept the benefits is probably insufficient to head off Congressional action too, since not every immortal is likely to be so charitable.

IV. Conclusion

In addition to the critical nature of SSNs in today’s increasingly connected and bureaucratic society, Social Security–and similar programs–represents a massive legal machine which superheroes must at least contemplate if they are to exist in society, especially if they are immortal or extremely long-lived. Thought must be given to the way they approach the identification, taxation, and benefits issues presented by the program.