Marvel Civil War I: Meta-Post

The Marvel Civil War event of 2006-2007 is a story which is perhaps the most sustained look at the legal environment of a comic book world to date. For those who aren’t familiar with it, let’s just say the event was… controversial. As such, it is a natural topic for Law and the Multiverse. We’re going to start out by looking at some of the more “meta” issues of the event, i.e. the difficulties that can arise when dealing with real law in more than a passing way in fictional worlds.

I. Common law systems and precedent

The issue here is that legal systems, particularly common law systems based on case law and precedent, develop naturally with events. Legislation is usually slow and sporadic, so frequently the courts are where new factual scenarios are tested out. The courts apply existing law to new factual scenarios all the time, and in a common law system the result is often new law.

The problem here is that even allowing for retcons and comic book time, by the time Civil War hit the Marvel Universe had existed for decades. The legal system doesn’t move quickly, and it’s plausible that Congress might not have taken any action to regulate superheroes until then, but it’s significantly less plausible for the courts not to have taken notice. Someone was going to try to sue Iron Man, the X-Men, the Fantastic Four, or any number of wealthy supervillains at some point, quite possibly subrogating insurance companies. These cases would create a body of superhuman/metahuman law.

But no such body of law is in evidence. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006. Heck, many lawyers don’t really like citing cases more than about twenty years old, simply because the law develops quickly enough to make most cases older than that of suspect value. So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic, particularly because the legal system would have had a chance to deal with many of these issues individually over time rather than trying to deal with it all at once via legislation. There’s messiness there that hurts the internal coherence of the story.

II. Legal drafting and continuity

But perhaps the biggest problem is that the Marvel bullpen never really seems to have decided 1) whether or not the Act was a good thing (Millar seems to have thought so, but a lot of the other writers seem to have other opinions. See Amazing Spider-Man # 530 for a truly lovely meta-textual spat), but more importantly 2) what the Act actually says.

Because believe it or not, what a given law actually says makes a big difference.  Most judges are pretty big on deferring to the legislature, and they do that by paying very close attention to exactly how a law is worded.  Similarly, the executive branch has to follow wording of the laws: if a bill says that it will be enforced by Agency X, then the President can’t decide to have Agency Y do it instead.  This is one reason lobbyists spend their money getting single paragraphs inserted into bills and why it’s so scary that our elected officials on both sides of the aisle tend to vote on bills they have absolutely no intention of reading.

In this particular case, it makes a huge difference both for the motivation of the characters and for the ultimate moral of the story as to whether the Act requires superhumans to go public or not, whether they are required to be federal employees or not, whether a super-powered individual who promises not to use their powers is required to register, etc. All of these make a huge difference and are hotly debated among the characters, which makes the whole thing feel more like the health care debate before the law was passed rather than any two sides discussing something which is already law, i.e. the disagreements often read like they’re about what ought to be, not about what is. This is kind of hard to avoid in fiction, particularly speculative fiction written by over half a dozen authors, but a little editorial discipline could have made the whole thing a lot more compelling.

For example: in What If? Civil War, the writers examine what would have happened if Tony Stark had been honest with Captain America at the beginning of the conflict instead of using treachery. The suggestion is that Cap would have agreed to become the head of the executive agency in charge of superhuman registration instead of Stark, and the difference in personal leadership would have made a big difference in the outcome. This is plausible enough; cabinet-level officials can and do have huge effects on the activities of executive agencies. But there isn’t that much indication in the canon Civil War stories that this is how the law was supposed to be implemented. The main Civil War stories basically make it look like it’s largely a S.H.I.E.L.D. operation with support from law enforcement and the military, not the creation of an entirely new agency.

More generally speaking, this is probably why most speculative fiction doesn’t spend a lot of time working out fictional worlds’ legal systems to any great level of detail, i.e. the devil is in the details, and if readers want extended discussion of the niceties of statutory interpretation and administrative law they can go to law school. Any sufficiently detailed legal system is going to take so much time and space to explain that the authors would never get around to telling an actual story. So while it’s disappointing that the Marvel authors didn’t make some effort at coming up with at least the basics of what the SHRA was supposed to do, one can see why they might have chosen not to. And one can also see why tangential interaction with the law, particularly for comic effect, can be a lot more effective than an attempt to deeply integrate the law as a plot device in speculative fiction. It’s hard enough to do in realistic fiction.

III. Conclusion

Hopefully, that lays out something of the groundwork and fundamental meta-type issues with the Marvel Civil War event. We’ll take a closer look at the actual stories in future posts.

38 Responses to Marvel Civil War I: Meta-Post

  1. You know when you guys start really getting into this one, it’s likely to blow up your bandwidth big time. Hope you’re ready…

  2. Given the number of issues devoted to this crossover, you think they could have devoted a one shot to being entirely about the law itself. They could have even presented it as a cheesy infomercial put out by the government, hosted by She-Hulk presenting it with scenarios addressing questions for super-heroes about “what the SHRA says and what it means to you?” This would have provided the tight editing control that could have helped.
    But then again continuity have never been a big concern for Joe Quesada.

  3. Once, I got to cite a case from the 19th century. I remember being ridiculously pleased by this, because I rarely got to read cases older than 1995 or so in that particular job.

    Anyway, I’m looking forward to this series. I wonder what a fictional world with a well thought out, completely consistent legal system would look like. Even if the system didn’t make it into the text, it’d probably change the way the story was told.

    • Well, to be fair quite a few “our world but different” stories have exactly the same legal system as our own since the differences aren’t common public knowledge. Of course, if they are based on real world law, perhaps they wouldn’t hit the “well thought out completely consistent legal system” mark you’re aiming for anyway ;).

    • Not on the subject, but my oldest cite was an 1835 Texas Supreme Court case on prisoner rights. And it was still authority!

  4. Melanie Koleini

    Miss Hap, are you asserting that the real world’s legal system is ‘completely consistent’? I’m not a lawyer but aren’t legal loopholes and technicalities examples of real-world inconsistency? That doesn’t even get in to cases where state and federal law conflicts.

    I too value fictional worlds that are detailed and internally consistent. But when it comes most ‘realistic’ systems there are plenty of exceptions to general rules and outright absurdities.

  5. Okay, completely consistent was probably the wrong way to put it. I was thinking of something like the way Tolkien thought out the language of Middle Earth first, then wrote stories that contained that language. Only with a legal system. And honestly, a legal system built that way would probably be more consistent and logical than any system currently on the planet, so points taken.

  6. As I recall from either the Civil War Files or Battle Damage Report one-shots, SHIELD was brought in because the US federal resources already in play were too scattered across too many agencies and departments – STARS, ONE, Commission on Super-Human Activities, and so on – to pull together on the short notice on which the Superhuman Registration Act got pushed through post-Stamford. The then-current version of SHIELD’s charter had a clause that stated any signatory nation could request SHIELD assistance with any relevant domestic issues of that nation’s choosing. Mexico had already invoked it in a previous Nick Fury/SHIELD series – then written by Dan G. Chichester – regarding organized crime problems in that nation.

    • Except that, from what I understand, SHIELD somehow got disbanded and replaced with an organization the U.S liked. Personally I’m of the opinion that whatever writer did that was simply unaware that SHIELD was supposed to be an international organization or they decided they needed to make the government as evil as possible*.

      *What other explanation is there for the HAMMER/Osborn thing?

  7. I’d say this actually touches on something else, the effort to portray comic book worlds as though they’re largely the same as our world but with superpowers. Obviously this is more of a sociological/political question but reading a ton of stories where humans can and have attempted to utterly destroy the world on their own I’m forced to wonder if things like the death penalty or the insanity defense in Marvel would really be at all like our standards.

    • That last is kind of the point of the first section of this post: one of the problems with the Civil War event is that it strains credibility to think that a common law legal system in a society which has lived with superpowered individuals long enough to have a Stamford incident has somehow completely failed to take notice of them even decades into their existence.

      But unless we want comic book authors to have to keep track not only of who said what to whom and when (which they don’t always do), but an entire body of parallel legal precedent, this is the kind of thing we as readers just have to deal with. It’s kind of like letting science fiction authors hand-wave faster-than-light travel into existence. It doesn’t necessarily make reading the stories any less fun, nor does it make looking at the legal issues in those stories any less interesting. We just have to accept a certain degree of departure from reality as part of the framework of the genre, even if said departure is worth pointing out from time to time.

      That, in turn, is why we wanted to start a discussion of Civil War with this sort of meta-post: there are certain issues that crop up just because of the nature of the project. With those out of the way, we can take a closer look at the specifics.

      • We might not expect it of the writers and artists, but that’s part of what editors are – or ought to be – there for.

      • Evil Lord Zog

        It’s not up to the authors to keep track: matters of continuity are supposed to be the job of the editors. Not that we actually seem to have editors working at the big 2 these days.

    • If there were a death penalty, there would be no villains. We wouldn’t have the Batman/Joker dichotomy, Arkam Asylum, or wherever Marvel puts convicts. More to the point, the idea that most villains are created by forces beyond their control (Graviton comes to mind) suggests incarceration rather than execution. Isn’t Sandman a perfect candidate for rehab?

  8. Looking forward to the rest of this series — it seemed to me highly probable that the draft provisions violated equal protection, at the very least. And, of course, the Negative Zone prison is a horrible combination of Guantanamo and Jose Padilla — confinement (possibly tortuous) in a remote location without due process or judicial review, of American citizens with the full panoply of civil rights, with civilian courts operating normally a la Ex parte Milligan.

    As you say, the confusion over the actual provisions of the law was avoidable and vexatious. Plus, as I recall, SHIELD attempted to enforce it on Cap even before it had been enacted! Fairly sure that violates all kinds of due process…

  9. Don’t forget there is a precedent for the SHRA in the Marvel Universe. The Mutant Registration Act was a pretty big issue for a while. Again, never explained in complete detail (but who wants to read a comic book that consists only of pages of legislation?) but at a basic level, the Acts are very similar. Including the infringements of civil liberties, enforcement, etc.

  10. Adrian Seltzer

    “So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic”

    Don’t forget the Mutant Registration Act from the 80s. I didn’t read Civil War but the few tie-in books that I did read never mentioned the MRA (or the fact that Mr. Fantastic testified before Congress against it).

  11. I’d always assumed there was some previous massive exemption from civil liability for vigilantism by costumed heroes, and a large part of the SHRA would have been the repeal of this. (or rather it’s restriction only to those on the list)

  12. > Maybe they would have been in 1966, but not in 2006.

    Especially not after years (in the Marvel Universe) of anti-mutant campaigning.

    They could have patched some of the plot holes as a re-organization of various agencies and the creation of a new Federal *unified* Department of Superhuman Security.

  13. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006.

    Ah but Spider-Man’s debut was in 1962. It’s now 2011. Say he was 14 in 1962. (He was in high school.) Is he 63 now? Marvel operates under a “moving time line”. That is, if Tony Stark became Iron Man in Vietnam when his origin was published in 1963 then he’d be an old man now so he must have become Iron Man in Afghanistan or Iraq instead. Similarly, while the Fantastic Four originally went into space because they were competing with the Russians in the space race, then they’d all be very old now. More likely future versions of the Fantastic Four origin will have them competing against Sir Richard Branson and Virgin Galactic. Writers deal with this by selectively choosing which stories to ignore, like the way Bryan Singer ignored Superman II and IV and decided that Superman Returns was only five years after Superman II.

    Thus in the case of the She Hulk, writers can safely write stories based on the assumption that although Jennifer Walters has been operating as the She-Hulk for some time, it hasn’t been many years and that, similarly, there had not been many years that had passed between Bruce Banner becoming the Hulk and her becoming the She-Hulk. Thus we can return to the issue of whether or not people would know who the She-Hulk is. She was a bit of a celebrity when she was a member of the Fantastic Four but the writers of the She-Hulk could just ignore that she ever was a member of the Fantastic Four.

    There’s one other way to look at this problem. If you read a fifty issue run of the Avengers then you’ll notice that the team gets zero down time. That is that as soon as one crisis is over another one pops up. So fifty issues of the Avengers could take place in a few months. Back in the day, Stan Lee was aware of the problem of having Thor, Cap and Iron Man always in the Avengers and appearing in their own titles at the same time so he rotated the Avengers line up so readers had the sense that when Cap wasn’t in the Avengers it was because he really was busy doing something in his own title. In theory, all the stories Marvel publishes over a ten year period could represent only one year of time in the Marvel Universe. Sure enough, Franklin only ages about a year for every ten published years of the Fantastic Four.

    So, when the SRA was enacted superheroes had actually been around less than a decade. Does that help?

    • Only a bit. Ten years is still enough time for the legal system to have taken some notice of superhumans, and you have to really push things to get to the whole “this has only ever been going on for ten years” bit. Ten years isn’t probably long enough for a brand new issue to reach the Supreme Court, but it’s definitely long enough for state trial and even appellate courts to have reached their own conclusions. It’s plausible that several state high courts would have addressed some of these issues in that time frame too, as different states have different procedures for interlocutory appeals and certifying questions to higher courts. So it helps a bit, but it still doesn’t fix the problem.

      And if you’re going to just adopt the whole canon discontinuity idea, a lot of what we’re doing here gets less interesting. Again, the legal system is significantly about building precedent over time, so casually waiving aside not merely legal precedent but huge swaths of fictional history lowers the stakes quite a bit. Besides, even if we’re going to let the writers off the hook for continuity between stories, that’s no excuse for failing within stories.

      • I think that anytime you speculate about the “timeline” of events in a comic you’re just doing a disservice to yourself and the comics you love.

        I understand that legal precedent should have been present and that the laws should have been changed by now, but they weren’t because that isn’t the way things work. I feel like comics are less of a long standing story and more of a mythology that is constantly changing.

        Although writers should take care to keep continuity within each separate story as closely as possible. I really feel a disconnect when characters that appear in two books at the same time seem to have no knowledge of other events in separate stories either.

        I read Uncanny X-Force, Deadpool, and The Avengers and Wolverine and Deadpool work together on UXF and Logan is an Avenger, but when they just had some pretty traumatic stuff happen to them in UXF their characters were almost out of the loop. But I digress…

      • Ryan Davidson

        Again, understood, but that does cause some problems for the legal analysis. But 1) Though it does sort of go with the territory, it is worth pointing out as a preliminary matter. And 2) that’s still no excuse for writers botching things within the space of a few issues. Even if we hold long-term time lines between story arcs fairly loosely, it shouldn’t be too much to ask for short-term consistency.

    • While it’s true that the ‘modern age’ superheroes starting with the Fantastic Four have only been around for something like ten to fifteen years with the sliding timeline, there are still a good number of superheroes inextricably tied to the WWII time frame, so the Marvel Universe has had more than seven decades to come to terms with at least some of the issues.

      Of course, given the big gap between the Golden Age of the late 30s and the 40s, with just a little activity in the 50s, and the start of the modern age (at this point in the 90s), it’s possible that any accommodations made for superheroes in the 40s fell into disuse or got overridden by new precedents like Miranda in the interim, so that they pretty much had to start over at fifteen years ago. But still, fifteen years is long enough for some if not all of the issues to have been worked out.

      • Martin Phipps

        You realize, of course, that another fifty of our years will pass before we see Franklin Richards in high school.

  14. On the subject of the costs associated with villains attempting to take over the world, the destruction caused by their maniacal mechanizations and the defense thereof, who pays Damage Control(tm) for their amazingly efficient cleanup efforts? Is there a fictional Superfund the covers these enormous expenses? Stark can’t pay for everything, and you can’t exactly sue Thanos or the Super Skrull. They were intrically involved in the Marvel Civil War, but who writes the checks to this superhero Halliburton? http://en.wikipedia.org/wiki/Damage_Control_%28comics%29

    • I haven’t looked into it, but it’s possible they could be paid by insurance companies. We talked about supervillain insurance a while back, and while there are problems, it’s possible that a residual pool of some sort would be paying the bills.

      There are a ton of contractors who do almost exclusively restoration work paid almost exclusively by insurance companies, so this would be merely an expansion of an existing thing rather than something entirely new.

  15. Thanks Ryan. I was pleasantly surprised to learn that the folks at Damage Control are still active in the Marvel Universe. I have some of the 1988 – 1991 issues. I need to catch up. As a securities attorney, I am fascinated by the corporate restructuring, “going public” and of course, the infighting.

  16. I really do wish Marvel had been more specific in regards to the actual workings of the law. There’s a lot of ways to actually write it, and some are far more restrictive and dangerous to the heroes than others. A clear implication of the dangers of a law that required /public/ unmasking would of course be what happened with Spider-Man: he publicly unmasks and pretty much immediately his family is in danger. But if public unmasking was never required, then a villain would need to do much more work to acquire the information the hero handed over (and if public unmasking wasn’t required then Spidey is a complete idiot…). Of course, the possiblity of information-gathering superpowers such as Telepathic mind reading and Cyberpathy or other “computer linking” powers would seem to have to be considered in building the law as well, to ensure reasonable protection, wouldn’t they?

    But yeah…was always disappointed that I could never find a clear guide to what the law was supposed to actually require, especially whether it required registration just because you /have/ superpowers (making it more of a racial registration law like the mutant laws), or because you intended to actively use them to fight crime (making it more of some kind of special citizen’s police force registration).

    • Evil Lord Zog

      There’s an issue of NYX’s first volume where the kids are in hospital and there’s a sign that says superhuman abilities are mandatorily notifiable just like gunshot injuries. Which I seem to recall was linked to the SHRA.

      The irritating thing is that the act was set up much like AzBat and WonderArtemis in the 90s, as grossly exaggerated strawman figures whose failure was designed to validate the existing status quo.

      The Mutant Registration Act always came across as a combintion of gun registration and the national register of sex offenders.

      The SHRA initially seemed like a cross between a national competency scheme and a training scheme: you only registered yourself if you wanted to operate a heroic identity, and in return for letting the government know who you were, they would train you to an acceptable level of comptency and implicitly grant you the rights and responsibilities of being a deputised agent of the state. Those who wished to live as private citizens were in no way obligated to reveal themselves or their abilities.

      This model would have served the needs of the cross-over admirably, providing conflict between those who registered and those who wished to continue as vigilantees as well as those who didn’t want the state to be responsible for the expense of dealing with the fall out of registered superhuman activities a la The Incredibles. And there were stories written using this version of the act.

      Then certain jackasses went all moustache twirling pantovillain about the whole thing and turned it into the MRA on steroids: not only did all superhumans have to register with the government, they were forcibly drafted in a military training program and subsequent deployment (possibly one would think in violate of posse comitatus) and if they didn’t co-operate with that, were forcibly depowered by invasive Starktech.

      While all the subsequent idiocy of cloning Thor, the negative zone and the wholesale employment of supervillains could have been coupled to either version of the act, that they followed on from the 2nd would seem indicitive of a decision to change course midstream (or that the pantofaction managed to solidify control over a previously unregulated plotline, and surely no one establishing a crucial plot point in a shared universe would be stupid enough not to actually write down what that plot point was and did).

  17. Certainly figuring out the SHRA text would have been a very good idea, for the reasons stated; but I cannot agree that it is a narrative flaw for different writers to have differing ideas of SHRA’s wisdom. The most interesting conflicts are those in which both sides have a good point. If all the right are on one side, and all the wrong are on the other side, storytelling tends to suck.

    • Evil Lord Zog

      It’s a humongous flaw if you haven’t locked down what the SHRA actually does before you write about it and instead leave the writers to implement a version that reinforces their agenda; as it happened, we ended up exactly with right on one side, wrong on the other situation, precisely so the bad guys could take over to further emphasise the wrongness of the concept in the myopic gaze of the fanboys running the show

      • In the end, even Captain America didn’t agree that right was all on his side, but it would go too far to say that Iron Man has right all on his side either.
        Certainly Marvel should do a whole lot more basic research in a whole lotta fields (how do Pym particles work anyway?) but they show a distressing focus on things like plot and character development.

  18. In the original plans for Civil War (which I believe Tom Brevoort showed a draft of on his old blog), there was going to be a new government agency called HAMMER to run the superhero registration. I don’t remember why they changed it to SHIELD; maybe it was just to simplify the plot.

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