Monthly Archives: May 2011

The Lincoln Lawyer

A couple of months ago we were asked about the movie The Lincoln Lawyer.  It’s not a comic book film, but it’s still close enough to pop culture that we thought people might be interested in a short post about it.  Spoilers follow, starting with the question itself.

“Benjamin Button” asks “is it feasible that any of [Mickey Haller’s] ‘legal obligations’ could prevent him from telling the courts that his client did in fact murder someone?”

In the film, Mickey Haller is the titular criminal defense lawyer.  He discovers that one of his clients (Louis Roulet) is a serial killer, but attorney-client privilege apparently prevents him from disclosing information that could free a former client (Jesus Martinez) wrongly convicted of one of Roulet’s crimes.  So the question really goes to the crux of the plot: is Haller actually in an ethical bind, and is his solution actually within ethical boundaries?

I. The Attorney-Client Privilege and the Duty of Confidentiality

The film is correct in stating that the privilege is held by the client, not the attorney, and that an attorney has an obligation to keep a client’s confidences.  In California, where the film takes place, the Business and Professions Code § 6068(e)(1) states that attorneys must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Confidentiality is a key part of being an attorney, and attorneys take that obligation very seriously, even in the face of death threats and criminal charges.  Without Roulet’s permission Haller could not testify against Roulet in court, nor could he disclose what he knew to the police or anyone else.

There are narrow exceptions to the duty of confidentiality, but they do not apply here.  In California, an attorney “may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”  California Rules of Professional Conduct 3-100.  Although Roulet showed signs of being a serial killer he was careful not to overtly threaten anyone or indicate a planned future crime.  Haller’s hands remain tied.

II. Haller’s ‘Solution’

Unfortunately, Haller’s solution is not free of ethical problems, to say the least.  The biggest issue is that Haller inappropriately discloses confidential information to at least two people: Gloria and Margaret.

Gloria is the imprisoned client that he uses to relay information to a known jailhouse snitch; she alleges to the snitch that if he testifies against Roulet that the prosecutor will cut him a deal.  There are several problems here.  First, there’s the breach of confidence inherent in disclosing anything that Roulet told Haller.  Second, he asked Gloria to solicit the snitch to commit perjury.  This is a violation of Rule 1-120 and quite likely a crime as well.

Margaret is Haller’s ex-wife and a prosecuting attorney.  Haller tells Margaret that his investigator, Frank, found information tending to exonerate Jesus Martinez and implicating Roulet in a prior murder.  But Frank only found that information as part of his investigation into Roulet’s alibi, and therefore the information is privileged.  Note that in many jurisdictions Margaret would be under an affirmative duty to report Haller’s ethical breach (ABA Model Rule 8.3), but California does not have a mandatory reporting rule for attorneys.  Nonetheless, she could theoretically report him, although the movie suggests that would be out of character for her.

III. Haller’s Other Ethical Breaches and Crimes

Haller commits several other ethical breaches, but we’ll limit our discussion to three of the most egregious ones.  First, he lies to a judge about the need to continue a trial by inventing a fictitious witness (“Mr. Green”) in order to extract payment from a client.  This violates Rule 5-200: an attorney “Shall not seek to mislead the judge … by an artifice or false statement of fact.”  It also violates § 6068: an attorney may not “encourage … the continuance of an action or proceeding from any corrupt motive of passion or interest.”  It’s also almost certainly a crime.

Second, Haller commits an ethical violation when he promises to recommend Val Valenzuela’s bail bond services in exchange for being recommended as an attorney to Roulet.  Rule 1-320(B) states “A member shall not compensate, give, or promise anything of value to any person … for the purpose of recommending … employment of the member … by a client, or as a reward for having made a recommendation resulting in employment of the member … firm by a client.”  Although it ultimately comes out that Roulet had specifically requested Haller and that Valenzuela was simply trying to secure a recommendation for his bail bond service, Haller did not know that at the time that he made the deal with Valenzuela

Third, it is strongly implied that Haller contacted the biker gang and asked them to beat up Roulet.  This is obviously a crime.

IV. The Good Stuff

We don’t want to sound too down on the movie.  It’s an enjoyable court room drama with a nice twist, and it gets many of the legal details right, even if the protagonist is ultimately a scoundrel and a hypocrite.  (Haller defends his career as a criminal defense lawyer on the basis of the sanctity of the justice system and criticizes a prosecuting attorney for going too far, yet Haller himself repeatedly acts outside the justice system.)

So, here’s some of the good stuff.  Criminal defendants often do not get nice rooms alone with their attorneys; the movie’s portrayal of conversations between Haller and his clients are pretty accurate.  Court is largely fairly boring, heated objections are rare, the jury is excused when discussing issues like whether a new witness can be put on the stand, and objections are made with reasons instead of simply by shouting ‘objection!’  Attorneys are usually collegial toward one another outside the courtroom.

V. Conclusion

The Lincoln Lawyer is a pretty good film as long as you don’t come away with the mistaken impression that Haller is just a slick attorney who knows how to work the system.  Instead, he’s a flawed, conflicted attorney who often uses morally and legally questionable means to accomplish noble ends.

Law and the Multiverse CLE

For the attorneys in the audience: Thomson West has invited us to give two CLE webcasts!  The June 21st program is an overview of some torts concepts illustrated by comic book situations, and the June 27th program is about superhero attorneys and legal ethics.  Be sure to use promotional code HEROES2011 for a 25% discount.  If there are any topics not mentioned in the program descriptions that you’d like us to address, please send us an email and we’ll try to work it in.


So last year a little movie called Kick-Ass was released to theaters. It was moderately successful, to the point that a sequel has been rumored, though that’s apparently in limbo for the moment. At any rate, the basic plot is that an unpopular high school kid, under the influence of comic books and a healthy dose of insecurity, decides to step up and be a superhero. He even gets a costume and everything. The results are… well… not exactly heroic per se, but pretty funny. This review is organized less around specific legal issues than the characters and the legal issues they raise. Spoilers follow as always.

I. “Kick-Ass”

First off, “Kick-Ass” himself. Better known—or rather “officially”, since no one seems to know him at all—as Dave Lizewski, resident of what seems to be either Brooklyn or Queens, is a loser. Plain and simple. He spends a disproportionate amount of time either hanging out in a comic book store or local diner with his two outrageously nerdy best friends or being rendered speechless by Katie, the girl he’s got a massive crush on. A couple of local thugs have set up shop in a parking lot/alley that Dave and his friends regularly cross on their way to and from school, and the thugs have relieved them of their lunch money and consumer electronics with sufficient regularity for it to have become something of a ritual. Then, one day, he asks himself why no one has tried to be a superhero in real life. He decides to go for it, and orders himself a wetsuit from an online vendor. After a couple of modifications and some… batons? practice swords? they’re never really identified… he’s got himself a costume and a self-imposed mandate. Who does he run into first? The aforementioned thugs. Emboldened (delusional?) by his newly-discovered superhero-ness, he decides to make a stand.

The scene of a gangly, out-of-shape teenager going after two muscle-bound thugs goes about as well as could be expected. Dave—excuse me, “Kick-Ass”—surprises the thugs for a minute when he resists, and manages to land one or two decent shots with his sticks. But unlike the stories in comic books, these thugs are not easily intimidated, nor do they mess around. Kick-Ass gets knifed in the gut pretty much right away, and as he wanders off, bleeding profusely, Kick-Ass gets hit by a car, shattering just about every bone in his body. The resulting full-body x-rays reveal pins and plates throughout his entire skeleton, yielding a picture which admittedly does look like a film of Wolverine, if Wolverine’s adamantium frame were patched together piecemeal with pins and screws rather than seamlessly welded to his skeleton by design. After a few weeks in the hospital Dave returns home, little worse for the wear, except that the damage to his spine has deadened his ability to feel pain. In short, Kick-Ass’s one superpower is the ability to take an ass-kicking slightly better than your average guy, not out of sheer physical toughness, but because he’s damaged goods.

After that auspicious start, things get a bit more interesting, legally speaking. Kick-Ass gets his break-out moment when some civilians upload a video to YouTube of him fighting off a group of hooligans to save a random stranger. The superpower does come in handy, as Kick-Ass really does take a beating, but he manages to get off a few defiant quotes about being willing to die rather than watching a group of guys beat up a defenseless man while the crowd watches. And you know what? Dave, as Kick-Ass, would be entirely within his rights to do what he did there. The right to defend others is basically co-extensive with the right to self-defense in most jurisdictions, i.e. one may use reasonable force to fend off or prevent what one reasonably perceives to be an assault on another. The weapons Kick-Ass was using aren’t particularly dangerous—no guns nor knives—and there were a bunch of attackers, so even if they had been unarmed, some additional “oomph” would be justified. And he doesn’t go after them, or even really try to hurt any of them, he simply strikes out whenever one of them attacks the guy he’s defending. This is, basically, an okay thing to do.

But that’s about where things stop. Dressing up in a costume isn’t really a violation of any law, but deliberately going out on patrol to fight crime with force is likely going to be a problem unless one is a law enforcement officer.  We’ve mentioned it in comments, but some idiot was arrested and charged in Michigan last month for hanging off the side of a building in a Batman costume with a variety of concealed weapons. The cops were, to put it mildly, not amused. The stock-in-trade of the costumed hero involves trespassing, violations of weapons laws (for concealed weapons if nothing else), and disturbing the peace, if not also assault or worse. Sure, there’s plenty of crime in our streets, but at this point, it isn’t the kind of crime that we believe could not be solved by police officers if there were enough of them.

II. Hit-Girl and Big Daddy

Of course, Kick-Ass realizes pretty quickly that he isn’t the only game in town. “Big Daddy,” a former police officer with a grudge, and his precocious daughter “Hit Girl,” are as close to the real deal as one can get without having actual superpowers: highly trained and ridiculously well-equipped. Hit Girl herself is a combination of utterly hilarious and deeply disturbing, given that she appears to be about twelve, yet is the single most violent and foul-mouthed character in the movie. There are a few obvious legal problems here. Training your daughter to take bullets by shooting her constitutes “endangering the welfare of a child” (N.Y. Penal Law 260.10) if anything does, and the number of laws they violate by possessing the kinds of weapons they do aren’t even really worth enumerating. It’s so blatantly illegal that it’s beyond illegal into something else entirely. Then again, the whole movie is pretty tongue-in-cheek, and it’s arguable that part of the whole project is to point out just how absurd the whole superhero gig really is.

III. Conclusion

If you’re looking for a realistic movie, this probably isn’t it, but in taking this approach, the filmmakers do seem to capture just how unlikely the idea of real superheroes actually is. It’s worth watching for that alone, and it also manages to be a pretty hilarious movie in its own right. A sequel probably isn’t warranted at this point, but it’s definitely worth watching.

Manhunter, Volume 1

This is the first post in a new series analyzing the legal issues raised by the 2004-09 Marc Andreyko run of Manhunter.  These issues cover Kate Spencer’s turn as the eponymous superhero.  By day, Spencer is a federal prosecutor who later becomes a criminal defense attorney for supervillains.  As with She-Hulk and Daredevil there are a lot of overt legal issues here but also a lot of more subtle ones.  There will be spoilers, but we plan to cover the issues chronologically, so if you want to read along then we suggest picking up the trade paperbacks (Manhunter vols. 1-5).

I. Not Guilty by Reason of Genetic Anomaly?

Early on in the first issue, Kate is prosecuting a case against Copperhead, a metagene-enhanced supervillain with a nasty habit of killing and eating people.   The defense stipulates to the facts of the case but argues that Copperhead is a genetic anomaly, possibly insane, and should not be held to the standards of human behavior.  Rather than being executed, the defense argues that he should be confined and studied.  The jury finds him “not guilty by reason of genetic anomaly” and he is sent to the Death Valley Metahuman Research Facility.

Assuming that “not guilty by reason of genetic anomaly” is not a defined verdict in the DC universe, could a jury do this anyway?  The answer is a clear yes.  For better or worse, a jury in the US system can find a defendant not guilty for any reason or no reason, even against all the weight of the evidence, and an acquittal cannot be appealed by the prosecution.

However, as we’ve discussed before, an acquittal (e.g. by reason of insanity) does not necessarily mean that the defendant won’t be involuntarily committed.  A defendant can lack the requisite mental capacity to be guilty of a crime (or as the defense appeared to argue in this case, the requisite personhood) yet still be a danger to themselves or others, justifying involuntary commitment.  So again the story is accurate in that Copperhead could be confined at a research institute despite the acquittal.

All that said, the defense theory is a strange mishmash of insanity and lack of personhood, which is itself a novel theory (“my client can’t be guilty, your honor, he isn’t even human” hasn’t been tried in the real world as far as we know).  It would have worked just as well to say that the defendant was legally insane and the underlying mental defect was caused by the genetic anomaly.  Still, off to a good start.

II. Child Endangerment

Here’s where things start to get dicey.  Kate’s son Ramsey finds her staff, which Kate had barely hidden in her house.  Curious, he activates it, causing an explosion that severely injures him.  Kate lies about the cause of the explosion, saying it was a gas leak.  It’s unclear why DCFS didn’t investigate, but supposing they had, what might Kate have been charged with?

One possibility is child endangerment.  Cal.Penal Code § 273a(a) states “Any person who, under circumstances or conditions likely to produce great bodily harm or death … willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment.”  Other options include criminal storage of a firearm if the staff is considered a firearm and reckless possession of a destructive device otherwise.

III. Blackmail

Later, Kate blackmails a former supervillain gadget-guy, Dylan Battles, into repairing and maintaining her equipment.  In particular, she threatens to reveal to his wife that he used to work for supervillains and is now in the witness protection program.

This is, as the comic points out, a crime.  Specifically, in the comic’s setting of California it’s extortion.  Cal. Penal Code § 518-19.

518. Extortion is the obtaining of property from another, with his consent, … induced by a wrongful use of force or fear.

519. Fear, such as will constitute extortion, may be induced by a threat … to expose any secret affecting him or them.

Although Kate primarily extorts services, some property comes along with it as well.

Further, by asking Dylan to break the law (the comic doesn’t say what but it’s probably weapons-related), Kate is committing both the crime of solicitation and an ethical breach.  California Rule of Professional Conduct 3-210 prohibits attorneys from “advis[ing] the violation of any law.

IV. Conclusion

Kate’s actions expose the contradictions inherent in every vigilante character: they often break the law while nominally trying to uphold it.  Sometimes the authors call that out explicitly, but sometimes they don’t.  There’s a lot to talk about in this series, so look out for more posts coming soon.

Tonner Doll Convention & The Summit City Comic Con

Today we have some news about recent and upcoming appearances and talks.

First, James and Ryan recently spoke at the Tonner Doll Company’s 2011 convention.  Tonner has long had a great DC Comics product line, and our talk—about Superman’s citizenship and renunciation thereof—was part of the announcement of Tonner’s new line of Marvel Comics dolls, which starts off with Captain America and a host of X-Men characters (e.g. Phoenix and the Scarlet Witch).  We had a great time at the convention, and we’d like to thank Robert Tonner for inviting us and everyone at the convention for being such a terrific audience.  The Q&A session after the talk was great, and if anyone from the convention has a question we didn’t have a chance to answer, please email us at and or leave a comment on this post.

Second, Ryan will be appearing at the Summit City Comic Con on June 18 in Fort Wayne, Indiana.  This will be Law and the Multiverse’s first comic con appearance, and we hope to make it the first of many.  If there’s a convention in your area that might be interested in having us give a talk or participate in a panel, drop us a line!

Smallville III: Doppelgängers and Direct Democracy

This marks the third post in our series on Smallville (1, 2), which ended its run a week ago. This time we’re looking at two plot elements in Season Ten: Lionel Luthor’s reappearance and the vote to overturn the Vigilante Registration Act. Spoilers, as always, follow.

I. Dopplegängers

Early in Season Ten, Clark accidentally activates a “Mirror Box,” which transports him to Earth-2, an alternate universe where Lionel Luthor, not Jonathan and Martha Kent, discover Clark the day of the meteor shower. The world is a rather bleak and terrifying place, and the alternate version of Clark is really quite a monster. Of interest for us is that the alternate version of Lionel manages to cross back into the “real” world when Clark returns. Of course, the “real” Lionel died several seasons ago, so Evil Lionel represents something of a surprise for our heroes.

Lionel goes about reclaiming the assets and property disbursed upon “his” death several years before. We talked about resurrection and probate law a while ago, and this winds up being pretty much the same analysis. The key here is that Evil Lionel is passing himself off as Real Lionel, and no one has any reason to suspect otherwise. The only way to really prove that he’s a doppelgänger is to have Real Lionel make an appearance, and that’s not going to happen. Even exhuming the body wouldn’t be conclusive proof, given the apparent state of cloning technology in the Smallville universe. Remember Lana faking her own death a few seasons ago? Using a clone. Lionel could have done the same thing here, and it’d be very, very difficult to prove otherwise. And really, a court is going to have a much easier time believing that someone like Lionel faked his own death than it will believing that he’s from an alternate reality.

Furthermore, other than Tess and Oliver, most of the LuthorCorp execs, i.e. the people with the most vested interest in Lionel’s status, are probably pretty excited to have him back, seeing as the business always seemed to do better when he was in charge. Lex did okay, but he’s still dead, and the Oliver/Tess administration seems to be mostly a series of disappointing quarterly reports and inconveniently fatal explosions. A return to the old guard would plausibly be welcomed.

So ultimately, while it may take some explaining, the mere fact of Evil Lionel’s presence will probably speak for itself, and it’s entirely possible that after some months, he could wind up getting most of his assets back. Particularly as the estate seems to still be winding down, given the continuing discovery of artifacts like the Mirror Box. Assets still in the estate would be his merely for the asking.

II. Direct Democracy and the VRA

A fairly serious plot arc in season ten is the Vigilante Registration Act, which seems to be pretty similar to the Superhuman Registration Act we’ve been discussing over here. This Act is even less worked out than the SHRA, but the show spends a lot less time playing with the details, so this winds up being less of a problem than it is in the Marvel Universe, particularly as the act seems to have been in force only for a few months, and with only a few dozen targets. But the same kind of constitutional issues are present, and the analysis is basically the same, so we won’t duplicate that discussion here.

The new wrinkle is that midway through the season, there is a popular vote to overturn or repeal the VRA. While Law and the Multiverse has, we hope, demonstrated itself as having a charitable eye for Acceptable Breaks from Reality where getting the law right would make for bad television, we are here coming to an exception: this portrayal of the legislative process is spectacularly, unforgivably wrong.

Why? Because there is absolutely no mechanism, constitutional or otherwise, for direct democratic referendum on any piece of federal legislation. Never has been, and unless the Constitution is amended, there never will be. The Constitution explicitly and self-consciously creates a system of representation and permits no direct participation of the people in the legislative process.

The federal constitutional amendment process, for example, is initiated by either Congress or the state legislatures.  Unlike many states, the people are never directly consulted about amendments.  Even more, despite the massive hype surrounding the Presidential election, direct election of the President is actually a myth: the fact that the popular vote matters at all is a feature of political custom and state law, not constitutional law. The Constitution provides that the President shall be elected by the Electoral College, not by the popular vote, and though states may determine their own means for choosing their Electors–including popular vote–Electors are under no constitutional obligation to vote the way their state’s popular vote goes, and state laws attempting to punish “faithless electors” have yet to be ruled on by the Supreme Court (probably because it’s never made a difference). So for starters, the federal government of the United States is way less democratic than most people probably think.

Getting the mechanics of the Presidential or congressional elections wrong is one thing, and probably excusable. Not everyone is a policy wonk. And in other cases, we’ve been pretty forgiving about authors and editors who don’t have the details of administrative law figured out. A lot of lawyers are pretty fuzzy there too. But making up an entirely new, unprecedented, and quite probably unconstitutional political form goes beyond the pale. This is high school civics stuff, not high-level political theory. Citizens of the United States have absolutely no opportunity to vote upon federal legislation. None. Zero. Nada. So a vote to “repeal” the VRA is completely meaningless.

Okay, theoretically, it’s possible for a repeal bill to be written that has as its trigger the results of the popular vote.  Triggers are a common feature of legislation, but they are usually based on either time or a future action of the legislature (e.g. a declaration of war).  Using a popular vote as a trigger would likely be so politically and legally controversial that the debate over the legitimacy of the procedure would probably overwhelm the debate over the underlying issue.  And of course the repeal bill would still have to be passed by Congress and signed by the President.

It’s also not clear under which enumerated power of Congress the popular vote could be taken under.  Remember, regular federal elections are handled by the states, though somewhat regulated by the federal government through laws like HAVA.  It’s quite possible that Congress would have to ask or bribe the states to handle the voting.  If any state abstained from participating in the vote that would call into question the legitimacy of the whole process.  The whole thing is, at best, a giant mess.)

If the writers wanted to come up with a high-stakes vote on the legislation, they could have. Witness the drama and wrangling that went into getting the ACA passed last year. It did come down to a few key votes, some of which were late at night or right down to the wire, and the drama dominated the news cycle for weeks at a time. But it was all representatives and senators doing the voting, responding to pressure from the public, not citizens voting on their own behalf. This would have made Martha Kent’s role even bigger, as instead of simply giving a stump speech here and there, she’d have been actively involved in the process. Of course, that would have meant paying Annette O’Toole more, and while that’s no bad thing for the episodes she’s been in, it may not have been possible for budgetary or logistical reasons.

Still, shame on the writers for not finding a way to do this even within the bounds of the Hollywoodland legal system. Even if they’d fudged the process of actually getting a bill through Congress, that’d have been okay. Congressional procedure is notoriously arcane, and in the light of the ACA last year, any writer worth his salt should be intimidated by the thought of getting that right. Any TV show that gets bicameralism and presentment down gets a free pass on legislative procedure as far as we’re concerned, as that’s the about as much legislative procedure as adult Americans can be expected to know. But this? Bad writers! No biscuit!

III: Conclusion

So with this post we’ve got one thing the authors get basically right, i.e. Evil Lionel can probably claim Real Lionel’s assets without too much difficulty, and one outrageously wrong, i.e. there is absolutely no provision in the American political system for direct popular referenda on federal legislation. There’s plenty more to look at in this series, so we’ll probably return to it at least once or twice more.

The State of Things

Law and the Multiverse co-author James Daily will be part of a panel discussion on the relevance of comic books in contemporary American culture on WUNC’s The State of Things, which airs today at 12pm Eastern.  You can listen online here.

Marvel Civil War III: The SHRA and the Constitution

For the third post in our series on Marvel’s Civil War event (1, 2), we’re looking at the constitutional validity of the Superhuman Regstration Act (SHRA). This will revisit some topics we’ve already talked about in other contexts.

I. The SHRA and Federalism

One of the biggest questions about the SHRA is whether Congress can do it at all. The Act was clearly and explicitly supposed to be an analog of the Patriot Act, passed in the aftermath of the September 11 attacks and widely viewed as a significant expansion of federal power at the expense of civil rights. Whether or not the Patriot Act is a net positive for society is a pretty good litmus test for one’s political leanings, and the SHRA—had it been planned out in detail—might have been too.

But the SHRA does more than the Patriot Act does, and even (or perhaps especially) when it is deliberately seeking to expand the reach of federal power, Congress must still  deal with the Constitution, at least nominally. Whereas the Patriot Act mostly has to do with anti-terrorism intelligence gathering and transportation security, the SHRA targets a rather ill-defined category of American citizen for special treatment. One of the biggest ambiguities is exactly who counts as a “superhuman” under the Act. Mutants fairly clearly do, as do people who can, e.g. fly under their own power, leap tall buildings with a single bound, etc., but why technology-based heroes should need to register at all is never quite explained. Either way, something like the SHRA runs up against the limits of the powers Congress has been granted by Article I.

We talked about a similar fictional federal law—Watchmen’s Keene Act—way back in December. There, we discussed the constitutional validity of a federal act outlawing costumed vigilantes and concluded that while this may represent a rather unusual implementation of the Commerce Power, current jurisprudence suggests that such an act might well be permitted to stand by the Supreme Court. Given that the SHRA was passed in the aftermath of the Stamford disaster (which resulted in the deaths of over 600 civilians including dozens of children), popular opinion was strongly in favor of the SHRA, and the Court has proven reluctant to play the heavy when faced with a Congressional action which could go either way constitutionally but carries strong popular support.

II. The SHRA and Congressional War Powers

But the SHRA has something going for it that neither the real Patriot Act nor the fictional Keene Act do: Congress is explicitly empowered to “raise and support Armies. . . . to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval forces,” etc. In other words, Congress has the power to raise armed forces for the national defense, and there is very, very little limit on its powers in this area. Indeed, the Supreme Court ruled unanimously that Congress’s power to raise and support an army gives it the right to link federal educational funding to the presence of military recruiters on university campuses. So if, as is sometimes indicated in the comic books, the SHRA was intended to form a kind of special branch of the federal armed forces, under the auspices of S.H.I.E.L.D. or something else, Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is never directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to unusually strong statements of congressional power when faced with this particular issue. See, e.g. Lichter v. U.S., 334 U.S. 742 (1948). But while the power of Congress to draft people into the armed services is generally beyond question, the power of Congress to draft specific individuals is something different.  For the most part, since World War II the draft has basically applied to all men equally.  Prior to World War II there was significant class discrimination, most exemplified by the paid substitute system of the Civil War.  But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the 19th and early 20th Centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

We talked about this in a Mailbag post and came to the conclusion that while this is an untested area of law, Congress’s sweeping war powers may permit them to target specific individuals for the draft. Again, the courts are very unwilling to restrict congressional authority where it is explicitly granted, and even though Amendments to the Constitution can and do curtail those powers, as there is no indication that any of the constitutional Amendments were specifically intended to affect the draft, it’s a fair bet that the Supreme Court would find that they do not.

III. Conclusion

Really though, what we have here is more evidence that the Civil War event could have been a lot better if the staff had simply decided what they wanted the law to do. The SHRA, or at least some form of it that does what the story needs it to do, probably would be constitutional. It is probably within Congress’s power, either the Commerce Power or the war powers, depending on how the authors want to spin that. And as we’ve said before, the story would have been a lot more balanced if the pro-reg side had been able to argue that the law was fair, constitutional, and well implemented. C’est la vie, we suppose.

Mailbag for May 13, 2011

Today we have a question about superheroes who work for the military and the Posse Comitatus Act.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

Repentinus asks about the Posse Comitatus Act and its effects on superheroes serving in the military (e.g. Captain America) or in quasi-military organizations like S.H.I.E.L.D.  First, a bit of background about the act.

Posse comitatus dates back to the common law era and has been defined in the US as “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.” United States v. Garcia, 672 F.2d 1349, 1368 n. 32 (11th Cir. 1982) (quoting Black’s Law Dictionary).  The Act prohibits the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 USC 1385.  Note that although the Act specifies the Army or the Air Force, “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.”  United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).  The Naval Criminal Investigative Service (NCIS) also falls within the Act despite being primarily staffed and run by civilians. See United States v. Chon, 210 F.3d 990 (9th Cir. 2000).  As a result, Congress granted the NCIS explicit authority to execute warrants and make arrests.  10 USC 7480.  Note, however, that the Act does not apply to the Coast Guard, partly because of the Coast Guard’s historical dual role as a law enforcement agency.  Jackson v. State, 572 P.2d 87 (Alaska 1977).

The final thing to note is this part of the Act: “or otherwise to execute the laws.”  This broader language means that the Act prohibits not just conscription into a posse but also prohibits the military from doing anything “which is regulatory, proscriptive or compulsory in nature, and causes … citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority” (without explicit Congressional or constitutional approval).  United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D. 1975) (aff’d by 541 F.2d 1275 (8th Cir. 1976)).  Examples of such prohibited acts include “arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.”  United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D. 1975).

That’s pretty much a laundry list of typical superhero activities.  However, note the key phrase “imposed by military authority.”  As the court in Chon held, “[Department of Defense] personnel may participate in civilian law enforcement activities in their private capacities, [but] they may not do so under the auspices of the military.”  Chon, 210 F.3d at 993.  As the Chon court explained, civilian NCIS agents “represented and furthered the interests of the Navy, and were delegated the same authority to do so as military NCIS agents. When the civilian world is confronted by agents of the Navy, it is unlikely to make the fine distinctions asserted by the government between military and civilian NCIS agents.”  Id.

Thus, superhero members of the military may engage in law enforcement activities so long as it is clear that they are doing so as private citizens (or to have explicit Congressional approval).  Luckily, most superheroes are quite adept at maintaining multiple identities, so it should be easy to separate out the civilian and military roles via a quick costume change.

That’s it for this week.  Keep your questions coming in!

Daredevil: The Trial of the Century Part II

For the first part of our series on this Daredevil storyline we discussed the charges against Daredevil’s client and evidentiary procedural issues.  This post will address a variety of issues and observations about the trial.  We’ll begin with evidence gathering.  As with the prior post, spoilers follow.

I. Evidence Gathering by the Defense

The defense team hires Heroes for Hire to track down and interrogate the gang that actually committed the murder.  Apart from entering the house by busting in the door, this isn’t particularly unusual.  Although the defense can use the criminal version of discovery to obtain a wealth of information from the police and prosecution (see, e.g., Fed. R. Crim. P. 16), a criminal defendant can’t direct the police investigation.  If the police don’t want to follow a particular lead or theory, that’s within their discretion.  As a result, it is common for criminal defendants to hire investigators, including expert witnesses and more traditional private investigators.

II. Legal Research

This storyline has the first conventional legal research scene we’ve encountered on the blog.  It’s true that the She-Hulk’s law firm (Goodman, Lieber, Kurtzberg & Holliway) maintains a law library, but in a bit of Fourth Wall-stretching, the library consists of comic books, which in the Marvel universe are a legally admissible record of the activities of Marvel superheroes and supervillains.

By contrast, the law library at the offices of Murdock and Nelson is pretty typical, if a bit old-fashioned even by 2002 standards.  Although there is a laptop in the scene, most of the work seems to have been done using printed sources.  There’s even the classic Wall O’ Case Reporters (here’s a real-life example), which you might recognize as a common background in law firm advertisements.

These days, most attorneys use electronic sources for the majority of their research.  The two main legal database companies are Westlaw (part of Thomson Reuters) and LexisNexis (part of Reed Elsevier).  Both are expensive, but they’re cheaper than maintaining an up-to-date print library.  Case reporter and statute book subscriptions aren’t cheap.  For example, a not-quite-complete set of federal case reporters costs about $44,000 plus another $2,400 per month to keep them up to date.  It would be much cheaper for Murdock and Nelson to switch to electronic databases.

One tiny nitpick: when listing potential cases to cite, Nelson offers Illinois v. Steve Rogers and Utah v. Banner as possibilities.  Those would actually be People v. Rogers and State v. Banner.  It’s possible that Nelson was indicating a particular case by giving the state name, but he also lists People v. Tony Stark, and we find it hard to believe that Stark has only been a defendant in one criminal case.

III. Witness Examination

There are two issues we’d like to address with regard to witness examination: objections and the examination procedure itself.

On multiple occasions during the trial the prosecution and the defense object to questions asked by the other side.  Like countless other fictional courtroom scenes, the attorneys simply say “objection,” the judge says “sustained,” and that’s that.  In reality, a party must give a brief reason for the objection (e.g. “objection, hearsay”).  A judge may allow an objection without an explanation, but if the judge overrules the objection then the party’s failure to state the basis for the objection may lead to the issue being waived on appeal.  At one point in the trial the prosecutor asks questions over Murdock’s repeated objections without any ruling from the judge.  Again, in reality trials are usually fairly calm affairs and the prosecutor would wait for a ruling from the bench before continuing.  But we’ll give the writers a pass on these, since almost everybody uses these tropes and for the most part they don’t affect the story.

The more important issue is that the writers shortened the examination process.  Most people are familiar with the first two stages, examination and cross-examination.  But the process can go further: redirect, recross, further redirect, and further recross.  At one point both Murdock and Ayala give pained expressions when the prosecutor seems to have trapped Reed Richards with a question without allowing Richards to explain his answer.  In reality, Murdock could have given Richards a chance to elaborate.  This is a bit less excusable than the other issues, but it can still be justified in the name of pacing and the length limitations of the medium.

IV. Putting the Defendant on the Stand

This case is a good illustration of the dangers of putting a criminal defendant on the stand.  Here the problem was that the defendant’s emotions got the better of him in the face of heated questioning from the prosecutor, and he said some things that didn’t reflect well on his character.  This is one of the many reasons why criminal defendants are rarely put on the stand.  The benefits rarely outweigh the risks.

V. Conclusion

All in all, Trial of the Century is a better courtroom storyline than The Trial of Marvel Boy, although that one isn’t too shabby itself.  We’ll analyze more comic book trials as we come across them, but if there’s one in particular you’d like to see us discuss, let us know!