Monthly Archives: April 2011

Mailbag for April 8, 2011

This week we’re taking a look at reader questions about the legitimacy of certain kinds of punishment and whether doctors or veterinarians would be legally licensed to treat extraterrestrials.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

I. Modification/Mutilation of Supervillains as Punishment

Joe asks about the punishment meted out to Sabbac, basically an evil version of Captain Marvel who, like his counterpart, could transform into a superbeing by uttering a word of power. When Sabbac was apprehended, he was sentenced to having his larynx removed to prevent him from speaking this word. Joe’s question is whether this would be a constitutional punishment, given the 8th Amendment prohibitions against “cruel and unusual punishment.”

The most obvious parallel is to chemical castration, where convicted sex offenders, usually pedophiles, are treated with what amounts to Depo Provera, a hormone drug usually used as a contraceptive. In women, that’s basically its only use, but in men, the drug generally results in a massively reduced sex-drive. Which, for pedophiles, is no bad thing.

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard to come up with standing. Either way, despite health and civil rights concerns, this appears to be a viable sentence in the US legal system.

Fair enough. But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute is a little harder both to deal with and to hide. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be.  We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (8 to 1!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the US after Buck, most recently in 1981.

On the other hand, Sabbac isn’t your run-of-the-mill offender here. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is “cruel and unusual” is whether or not the punishment is grossly disproportionate proportional to the severity of the crime.  Ewing v. California, 538 U.S. 11, 21 (2003).  This is, in part, why the Supreme Court has outlawed the death penalty for rape cases, i.e. if no one is dead, execution seems to be a disproportionate response. Coker v. Georgia, 433 U.S. 584 (1977).

The 8th Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).  Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or violative of fundamental fairness, but in a case like this necessity goes a long way, especially because the purpose of the operation is not retributive punishment.

So then, if the only way to prevent Sabbac from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

II. Medical Treatment for Aliens

Jona asks whether it would be more proper for an alien to seek treatment from a physician or a veterinarian. This question revolves around the extent of the license under which each profession operates. Like law, the medical professions are all fairly well regulated and require practitioners to be licensed by the state. This serves both to ensure that professionals are competent, but it also permits the state to keep at least minimal tabs on those professionals in the event one of them should do something bad. It also permits the state to prohibit a professional who has engaged in egregious misconduct or is otherwise unfit to practice from doing so. There’s a lot in this, and we’ll probably return to it for a full post down the road a ways, but here’s some preliminary thoughts.

The question here is which license would provide the authority to treat an extraterrestrial. Whether or not the alien is intelligent is not actually part of the analysis, because that isn’t how the MD and DVM licenses are distinguished. Physicians are licensed to treat homo sapiens, and veterinarians are licensed to treat pretty much everything else. So at first glance, it would seem that vets would be better positioned to treat aliens than physicians, particularly aliens of the non-rubber forehead variety.

This isn’t really a matter of competence mind you: both a physician and a vet would presumably be equally out of their depth if faced with truly alien biology, if only because neither would actually have any idea what’s going on in there. Even analogizing to known species’ physiology would be impossible without a significant amount of study, and depending on the circumstances under which treatment was necessary, there might not be time for that. So if, for example, aliens crash-land and injured survivors are located, time may well be of the essence. In that case, it would probably wind up being a measure of which kind of professional could be located first.

On the other hand, physicians have two things going for them that vets tend not to. First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene.  Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense. There aren’t many people who can afford to have their dog put on a ventilator, let alone livestock, the latter of which are raised for explicitly economic purposes. There’s just no odds in it. So as a matter of practice, physicians may well be more likely to be involved, licensing issues aside.

Ultimately, the question is probably moot. If we are operating under the assumption that this is an unexpected and potentially one-off occasion, licensing matters aren’t likely to even come up. They usually only do in malpractice situations, and most stories involving emergency treatment of extraterrestrials don’t seem to permit the aliens a sufficient degree of integration with human society to file lawsuits. And if aliens are that common and integrated, the medical professions would adapt to figure out which professions would wind up being licensed to treat them. Depending on their physiology, it could go either way.  There’s more to consider about this, though, so look forward to a follow-up post in the future.

That’s all for this week. Keep sending in your questions!

The Trial of Reed Richards

Several readers have inquired about The Trial of Reed Richards (aka The Trial of Galactus), which is a great John Byrne-era Fantastic Four storyline.  There are several legal issues to discuss here, but we’ll start with a brief synopsis of the story line.  Readers who are already familiar with the story can skip to section II.

I. The Story

In Fantastic Four #243-44, Reed Richards saved the life of Galactus, a powerful creature with a nasty habit of devouring inhabited planets.  Later, in Fantastic Four 261-62, the survivors of Galactus’s prior attacks put Reed on trial for the deaths caused by Galactus after Reed saved him, most notably the deaths of 7 billion Skrulls when Galactus consumed the Skrull throneworld.

(Actually, first the survivors sentence Reed to a summary execution, but after a brief fight between the rest of the Fantastic Four and Reed’s would-be executioners, the Watcher intervenes, and then the survivors decide to hold a trial.)

Princess Lilandra of the Shi’ar Empire appoints herself prosecutor.  Apparently Lilandra had appeared to Reed after he saved Galactus and warned him “Should [Galactus] consume any world known to us you will be in part responsible…and will be held responsible for it…to the full extent of Shi’ar law!”

Lilandra first calls a survivor of the destruction of the Skrull throneworld.  Following that, she calls innumerable survivors of prior Galactus attacks to establish that Reed knew full well of Galactus’s pattern of planet-eating.

In the face of the prosecution’s evidence, Reed pleads guilty—but not to a crime, rather to the fact of saving Galactus’s life.  Reed argues that doing so was no crime because Galactus is a force of nature and part of some greater plan for good in the universe.  To this end, the god Odin is summoned by the Watcher to testify as to Galactus’s origin, as told to him by Thor, who was told by Galactus himself.  Odin testifies that Galactus was created at the beginning of the universe, the lone survivor of the end of the prior universe, and thus Galactus is a natural force.

Alas, Odin’s testimony fails to persuade everyone.  And so Galactus himself shows up to testify that Reed’s act was “honorable and good.”  Unsurprisingly, the testimony of an alleged mass murderer whose life was saved by the defendant is unpersuasive.  So the Watcher and Galactus combine powers to summon Eternity, the embodiment of the entire universe.  Eternity links the minds of all of the creatures in the court room, allowing them to see the Cosmic Truth that Galactus is a necessary force in the universe.  In the face of such overwhelming evidence, Reed is exonerated and the Fantastic Four return to Earth.

So that’s the story.  We don’t know anything about Shi’ar law or M’ndavian procedure, so we’ll analyze the case from an earthly legal perspective.

II. The Legal Issues

A. Preliminary Issues

There are a whole host of legal issues here, but we’ll stick to the big ones.  Right off the bat we can say that the appeal of Reed’s summary execution is a kind of habeas corpus petition, essentially a demand that the authorities prove that they have the right to detain (and for that matter execute) Reed.

Next: the issue of Reed’s extradition.  Here we can take some issue.  The alleged crime (saving Galactus) occurred on Earth, Reed is a citizen of a nation of Earth, he was on Earth at the time of his forcible extradition, and it doesn’t appear that the US or UN have agreed to any kind of extradition treaty with the Shi’ar or the ad hoc Galactus-survivor court.  On the other hand, Reed seems to waive the jurisdictional issue and accept the legitimacy of the trial, which by Reed’s choice is conducted under M’ndavian procedures, “the most perfect legal system in the galaxy.”

B. The Prosecution’s Case

Now we get into the trial proper.  Lilandra’s argument is that Reed saved the life of someone he knew would go on to kill others, and therefore Reed is guilty of a crime, though the specific crime is not named.  We can’t speak to Shi’ar law, but under the US legal system Reed’s actions would probably not be a crime.  There are three main theories under which Reed might be liable: conspiracy, accomplice or accessory liability, and facilitation.  However, the first two require a level of intent that Reed did not possess (i.e. he did not intend for Galactus to go on to commit any crimes).

That leaves facilitation.  In New York, where we believe the alleged crime took place, facilitation is, in general, “a kind of accessorial conduct in which the actor aids the commission of a crime with knowledge that he is doing so but without any specific intent to participate therein or to benefit therefrom.” Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney’s Spec. Pamph. (1964), p. 328.  Here’s the definition of the most general form of facilitation:

A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.

N.Y. Penal Law § 115.00.  At first glance this looks pretty bad, and it is a closer case than conspiracy or accomplice liability.  Again, the answer turns on intent, but in this case it’s Galactus’s intent that matters, not Reed’s.

At the time Galactus’s life was saved, Galactus did not have the required intent to commit a crime.  Sure, at some point Galactus was likely to get hungry and eat a planet, but at that particular moment he did not have the intent to eat any particular planet.  Without that intent element, Reed couldn’t commit the crime of facilitation.

But even supposing Reed’s conduct would have been a crime, he may still offer the defense of necessity, which we’ll discuss below.

C. The Defense’s Case

First off, Reed’s guilty plea is completely backwards.  Rather than pleading guilty to the fact of saving Galactus’s life but arguing that his conduct was not a crime, it would make more sense to say that he stipulates to the facts but maintains a plea of not guilty.  But that’s a pretty technical point.  There are bigger problems with the defense’s case, specifically Odin’s testimony.

Odin’s testimony is a gigantic ball of hearsay problems, and we don’t think there’s any answer to it.  Odin is trying to offer the rare double hearsay: the words of Galactus as spoken to Thor as spoken to Odin.  It would also have been hearsay if Thor had been the one to testify, since there’s no exception that would apply there, either.  What’s more, all of the hearsay issues could have been circumvented since Galactus himself showed up and so could have given the same testimony properly.

Finally we have Eternity’s testimony, which basically amounts to the defense of necessity mentioned above: saving Galactus was a lesser harm to the universe than allowing him to die, even though he would go on to destroy other planets.  So even if Reed’s conduct would have been a crime, he may still claim the defense of necessity.  We’re not so sure that his actions were actually reasonable under the circumstances (i.e. an ordinary reasonable person would probably not have made the same choice), but who’s going to argue with Eternity?

III. Conclusion

The Trial of Reed Richards is a classic and enjoyable Fantastic Four story, and we’ll take John Byrne’s word for it that M’ndavian procedure and Shi’ar law were followed in the comic.  It’s interesting to note, though, that roughly the same result would probably have been achieved under US law, in some cases for the same or similar reasons.

She-Hulk # 1

She-Hulk, also known as “Jennifer Susan Walters,” is the cousin of Bruce Banner (aka The Incredible Hulk) and has served as a member of the Fantastic Four, the Avengers, S.H.I.E.L.D, and… an associate at Goodman, Lieber, Kurtzberg & Holliway, a firm which, in the Marvel Universe, is one of the most prestigious on the East Coast.  Naturally, there’s a lot of material for Law and the Multiverse here.  In fact, we’ve written a bit about She-Hulk’s issues with legal ethics before.

In issue # 1 of her third solo-series (starting in 2004), She-Hulk was working as an assistant district attorney for New York City. At this point in her life, she was basically living as She-Hulk full-time, only reverting to her Walters form when sleeping (and even then only involuntarily). During closing arguments of a trial, she was called away to help the Avengers save the world from A.I.M. The judge let her do this, because, well, it kind of needed to be done, but he then declared a mistrial when the defense pointed out that the jury could very easily be said to be improperly influenced by the prosecuting attorney saving their collective butts from imminent death. It must be said that defense counsel has a point here, and judges do, in fact, declare mistrials when it seems likely that there is some undue influence going on, something to indicate that the jury is predisposed to favor one side or the other on the basis of anything other than what they’ve seen at trial. So as far as that goes, the writer is correct.

But he’s probably missed something: if a mistrial can be granted because She-Hulk saving the world during trial would improperly influence the jury, then why wouldn’t the jury’s knowledge that she’d done the same thing on countless prior occasions be an issue? One of the things that attorneys ask during voir dire is whether the jurors know basically anyone involved in either side of the case. Having any kind of personal relationship with either attorney would easily constitute grounds to strike for cause, and there would be a good argument for striking jurors whose lives had been saved by the prosecutor. This means that empaneling a jury with She-Hulk as one of the attorneys is going to be almost impossible.

Which, unfortunately, calls into question She-Hulk’s ability to be a litigator at all. This goes beyond just an attorney being a newsworthy figure. Even those attorneys that have attained some kind of media attention for their practice don’t have all that much trouble finding jurors who have never heard of them. Kenneth Starr, the head of the legal team that investigated President Clinton, attained some measure of fame/notoriety, but he’s hardly a household name. But She-Hulk is another matter entirely. She’d be nationally and even internationally known, and she’s definitely portrayed as a celebrity. Everyone knows who she is and what she’s done, though admittedly being seven feet tall and green doesn’t help much there. Showing up as Walters doesn’t necessarily help either, as her mundane identity isn’t secret. So it’s really a question as to whether she could really practice law the way she’s shown to practice it. This is something we’ll probably need to ignore if we want to let the story go on, which is definitely worth doing, because there’s a lot of other stuff in here.

So that’s the first issues of the latest She-Hulk run. The authors get some things right, but so far the presentation of legal issues is only okay.  But to be fair the same can be said of most fictional portrayals of the legal system. We’ll continue to look at this series down the road.

ABA Journal

Law and the Multiverse was featured in an article in this month’s American Bar Association Journal.  A big hello to our fellow attorneys, and thanks to Eriq Gardner for a great interview!

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 and 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!