Mailbag for April 1, 2011

Today we have questions about sentient property and Asgard’s extraterritoriality.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Lost Sentient Property?

Both of today’s questions from Wusheng.  The first question is about Alan Scott (i.e. the first Green Lantern) and his ring: “The ring and lantern that Alan uses were carved from a meteor called the Starheart.  This meteor … was sentient.  As a result, the ring and energy within both it and the lantern, are sentient. … [H]ow does that affect the ‘lost property’ label that you gave it?”

This was partly addressed in the comments on the Lost and Found post that Wusheng referred to, but we wanted to take the opportunity to mention another possibility.  For intelligent artifacts that are not legally considered people (e.g. either because the courts don’t recognize non-human intelligences or because the artifact fails whatever test the courts set up), it is possible that a court could treat them as a kind of animal.  So we wondered how the lost property analysis changes if one views the ring as a lost animal (albeit one that doesn’t move around much).

As it turns out, there is a particular body of law dealing with lost or stray animals, which the law calls “estrays.”  (The initial e comes from the Old French estraier. This is a common pattern in old legal terms.  See, e.g., estoppel).

At common law estrays were generally defined as “a beast wandering, or without an owner; one wandering at large, or lost, or whose owner is unknown.”  Walters v. Glats, 29 Iowa 437, 439 (1870).  However, most states (including Iowa at the time of that decision) have specific statutes for estrays.  Importantly for superheroes, the reason the beast was wandering is unimportant: “it is plainly immaterial how the animal escaped from the owner,—whether by his voluntary act, by the act of a trespasser upon his premises, or by a thief.” Kinney v. Roe, 7o Iowa 509 (1886); see also State v. Miller, 41 N.M. 618 (1937).  Relatively recently the Vermont Supreme Court held that estray laws only apply to animals of considerable economic value and so do not apply to dogs.  Morgan v. Kroupa, 167 Vt. 99, 102-03 (1997).

The sentient ring and lantern would seem to fit this definition: they are plainly lost (albeit not wandering), the owner is unknown, and they definitely have considerable economic value.  The next question is, what rights are conferred on the finder of an estray?  The particulars vary from state to state, but the general framework is that the finder acquires a qualified property right that becomes an absolute right if the original owner doesn’t show up and claim the estray after a set time period.  Since the original owner never shows up, Scott would get a complete property right in the ring and lantern.

Since many states have enacted estray statutes rather than rely on the common law, a judge might not be able to apply the estray statute directly (that’s the problem the Vermont court ran into).  However, estray law provides a template or framework that courts can use to apply to things that sit in that “special place somewhere in between a person and a piece of personal property.” Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (City Civ.Ct.1979).  So a court could use estray laws as the basis for handling sentient artifacts.

II. Extraterritoriality and the Asgardian Embassy

For his second question Wusheng writes about Thor moving Asgard to Oklahoma (Thor, vol. 3, #2-3).  “He started out just hovering it over farmland, but eventually bought out the farmland for a massively inflated price (he filled the back of the farmer’s truck with gold).  At this point, Iron Man tried to force Thor into declaring it to be under U.S. rule, but Thor knocked him around like a rag doll for a bit and Iron Man agreed to let it remain sovereign.

My question is, if we disregard the attempt by Iron Man to force it under U.S. rule, how would International Law handle something like this?  Or would Iron Man’s response (if heavy handed and more than a bit foolish) have been a more or less appropriate response?”

What the US granted Asgard was extraterritoriality.  As Iron Man explained in the comic, this is indeed a common feature of an embassy or other diplomatic mission.  The bigger issues here are Asgard’s size (i.e. just how much space is being ceded), whether Iron Man really had authority to negotiate on behalf of the US (we’ll assume he did for narrative convenience), and whether the US was willing to give territory to a foreign power that effectively just invaded the US (we’ll assume it was willing to do so because, c’mon, he’s the God of Thunder).

It’s not clear exactly how large Asgard is, but it looks to be at least several acres and perhaps as much as a square mile.  This would be exceptionally large for an extraterritorial space in the US.  The largest such space is the UN headquarters in New York, which sits on 17 acres (.026 square miles).  There are roughly 190 foreign embassies and 1200 foreign consulates in the US.  Assuming they all enjoy extraterritorial status (which is not actually the case) and occupy an average of one acre each (which is being very generous) that amounts to about 2.18 square miles.  So Asgard would likely be the largest extraterritorial space in the US and quite possibly the largest embassy in the world (the current record holder, the new US embassy in Iraq, sits on 104 acres or .16 square miles).

However, while that might be unusual for the US and for embassies, it is not unusual in other contexts.  For example, the US operates hundreds of military bases in dozens of foreign countries, some of which are quite large (e.g. Guantanamo Bay Naval Base is 45 square miles).  So it is not without precedent for a country to cede a large extraterritorial space to another country.  It would be unusual for the US to do so, but given that we’re talking about a God of Thunder here, the result seems reasonable and consistent with how international law treats embassies and similar extraterritorial spaces.

That’s all for this week!  Until next time, keep your questions and post suggestions coming in!

9 responses to “Mailbag for April 1, 2011

  1. Wouldn’t Native American reservations be an appropriate analogy? The tribes have their own legal systems, etc.

  2. Regarding Asgard: Does the fact that the land itself was moved change anything about the extraterritorial status?

    • I don’t think so. Asgard is still sitting within the borders and jurisdiction of the US, so without extraterritoriality the US could do what it wanted to with it. Merely putting a piece of foreign ground on US territory (or even hovering above it) does not make that land into a slice of the home country.

      • That brings up one question for me; I know there’s obviously some recognized version of a country having an “airspace”, but has there ever been a strict legal definition of what constitutes being within a country’s airspace? One would think it’s not infinite given orbital objects aren’t considered to be trespassing per se, but I’m wondering if there’s ever been a official legal definition of maximum airspace altitude in international law.

      • Martin Phipps

        @Mike

        http://www.infoplease.com/ipa/A0004508.html

        “The upper limit of the atmosphere is usually given as 120 mi (192 km); no definitive figure is possible, since there is no boundary line between the incredibly attenuated gases 120 mi (192 km) up and space.”

  3. James, in your response in a previous column, you said that Proty could not be considered a vertebrate because statutory construction requires that words have their everyday meaning, and also because the law contains a definition.

    Wouldn’t the same reasoning apply to a court treating a lost power ring as a kind of animal? It seems to me like the same kind of stretching of definitions I suggested in the Proty case. After all, the everyday meaning of “animal” surely excludes power rings, and I bet any definition in the law would exclude them as well.

    • Statutory construction generally requires giving words their everyday meaning, unless the legislature has otherwise defined them. Estray is a product of the common law, and so in states that do not have estray statutes, judges are able to adapt the common law principles to new situations. In states that do have such statutes, the judges are likely to be bound by the meaning of the words in the statute and so couldn’t apply the statute to something like an intelligent artifact (and I said as much in the post).

      Nonetheless, a judge might still use the principles behind estray to fashion a new common law rule for intelligent artifacts. Of course, as we suggested in the original post, they could also simply consider them to be an ordinary item of personal property.

  4. Do gods and/or their avatars get any tax exemption (without needing to ask and without the laws needing to be significantly modified)?

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