Captain America

Captain America was, quality-wise, pretty much the polar opposite of the last movie we reviewed.  There are two legal issues we’d like to touch on, both of which come up early in the movie.  Still, these are technically spoilers.

I. Falsifying Your Enlistment Form

Steve Rogers is desperate to enlist in the Army, but he has a range of health conditions that make him unfit for service.  Since Rogers seems constitutionally incapable of giving up, he attempts to enlist five times, each time claiming to be from a different city.  The movie suggests this is a crime, but would simply lying about where you’re from be enough?

To find out, we dug up a copy of the Selective Training and Service Act of 1940 (2MB PDF).  Although the Act is primarily concerned with the draft (which was well under way and which Rogers would have had to register for), it includes a provision allowing for voluntary enlistment.  As such, we believe it would apply in this case.  The key provision for our purposes is Section 11:

“Any person … who shall knowingly make, or be a party to the making of any false, improper, or incorrect registration, classification, physical or mental examination, … induction, [or] enrollment … shall, upon conviction … be punished by imprisonment for not more than five years or a fine of not more than $10,000 or by both such fine and imprisonment.”

There is no general federal attempt statute, so for Rogers to be guilty under this section he would actually have to complete the offense, since the law does not criminalize attempting to falsify one’s registration (it does criminalize making a false statement when trying to avoid service, but Rogers wasn’t trying to avoid anything).  We may presume that Rogers told the truth when he registered for the draft and only lied when trying to enlist voluntarily.  Rogers’s final and successful enlistment was also truthful: Rogers confesses to Dr. Erskine that he is actually from Brooklyn.  So the question becomes: were any of Rogers’s classifications or examinations “false, improper, or incorrect?”

The answer here is arguably “no.”  He was truthfully, properly, and correctly classified 4-F (i.e. unfit for service) and the content of his physical examinations were likewise accurate (hence the 4-F).  Arguably any subsequent draft registrations would be false, but since he was trying to enlist voluntarily rather than re-register for the draft, he is probably in the clear here as well.

On a final note, the general federal false statements statute (18 USC 1001) was not enacted until June 25, 1948, so that would not apply (and it’s debatable whether Rogers’s false statements were “material” for purposes of the statute anyway).  The Articles of War (the predecessor to the UCMJ) contained a provision prohibiting fraudulent enlistment Article 54, but that only applies to someone once they have enlisted, and Rogers’s actual enlistment was honest.

So in summary: Rogers definitely skirted some lines, but we think he’d have a good case for not having actually broken the law, especially since his false statements weren’t about something the Army probably cared much about anyway.

II. New Drugs and Human Testing

We’ve talked a bit about the process by which new drugs are approved in the context of the movie Limitless.  In general the process was similar in the 1940s, since the Food, Drug, & Cosmetic Act was passed in 1938 and described basically the same approach to new drug testing.  And although Rogers did not give completely informed consent (Erskine only hinted at the side effects of the early version of the serum), he was at least a volunteer and understood some of the risks.  Furthermore, it’s doubtful he would have refused to volunteer even if he did know all of the risks.  At a minimum it was far from the worst thing the government was doing at the time.  However, it’s arguable that the FD&C Act would not have applied at all, since the serum was not being introduced into interstate commerce.

The FDA aside, the current regime for human testing was really only instituted in the 1970s. In particular, the Institutional Review Boards which form the core of ethics oversight in human testing were formed in response to regulations authorized by the National Research Act of 1974. So a lot of the reasons why something like Erskine’s project would be illegal or at least problematic simply didn’t exist in the 1940s.

One other issue is that Erskine’s work was based on work he did under the Nazi regime.  This, too, is entirely plausible.  The early US space program was led by the German scientists who developed the V-2 rocket, and the results of several monstrous Nazi (and Japanese) experiments on human subjects have since been used by medical researchers for humane ends.  There is no evidence from the film that Erskine’s research was ethically problematic, and so it is even more believable that the military would have had no qualms about continuing it despite its murky origins.

III. Conclusion

Captain America was a good movie, and the legal issues were handled very well.  Although we disagree with the movie about whether Rogers actually committed a crime by lying on his enlistment form, that really only makes him a better embodiment of America.  After all, not only was he innocent, but he was following the letter of the law while disregarding its spirit.  And what could be more American than getting off on a technicality?

17 responses to “Captain America

  1. Have you looked at the earlier 90s Captain America movie?

  2. A point of order:

    There is no way in Hell that any court would rule that the super-solder serum was not a product of interstate commerce. There was a massive project with people and equipment from all over the country (and the world) and it used any number of incidents of interstate commerce in its production (telephones, etc.) Wickard had probably not been decided yet, but the writing was on the wall.

    Whether it would have been subject to the FDCA, I don’t know, as among other things I don’t know if there’s a war powers exception to the FDCA. But the movie takes place late enough in the development of American jurisprudence that the ‘interstate commerce’ defense is a nonstarter.

    On a total comic-geeky note, I think my favorite nerd-note in the movie was the original Human Torch being on exhibit in the Expo Hall. Since the actor who plays Captain America has also played the Human Torch (though not the same one) that was a two-fer. 🙂

    • “There is no way in Hell that any court would rule that the super-solder serum was not a product of interstate commerce.”

      Ah, but being a product of interstate commerce is not the test. There aren’t a lot of cases on this point, but the few that exist suggest the serum may not have been “introduce[d] or deliver[ed] for introduction into interstate commerce” as required by the statute.

      For example, “A drug should be deemed to be ‘in interstate commerce’ at its point of manufacture if one of its components previously traveled in interstate commerce, and if the finished drug itself is destined in the ordinary course of business for interstate distribution.” U.S. v. Articles of Drug…WANS, etc, 526 F.Supp. 703, 707 (D. Puerto Rico 1981) (emphasis added). In the movie it appeared that the serum used in the Rogers test was the only serum in existence, apart from the unused vial that was stolen and then destroyed. Since multiple vials were used to dose Rogers, it’s doubtful that single vial was “destined in the ordinary course of business for interstate distribution.” This is just a district court case, but it suggests a plausible line of argument.

      Of course, it may well be that they filed a New Drug Application with the FDA and the point is moot.

    • Melanie Koleini

      Giving the super solder serum to a person is clearly Phase I clinical testing.
      Since the movie takes place pre-IRB, all the doctor would have to do to stay legal is to file a new drug application with the FDA.
      However, since the government is funding the research for its own use, it is doubtful this is necessary. Durring the cold war the CIA funded research involving giving ‘truth serum’ to institutionalized patients. At least one person died. The government blocked people from getting treatment for syphilis to see how the disease progressed (Tuskegee syphilis study) and gave prisoners in Guatemala syphilis to study the infection process*. Doctors doing drug research routinely used their patients as guinea pigs without getting informed consent.

      I could go on with more examples but my point is this: pre-1970s there was very little actual enforcement of laws designed to protect people involved in medical research. The institutionalized, prisoners, and solders were often used in dangerous studies. After all, members of the first 2 groups wouldn’t be missed and solders were supposed to be willing to die for their country.


  3. Martin Phipps

    David E Kelly’s version of Wonder Woman tried to address a lot of the legal issues discussed on this blog. It wasn’t well received by the network and is getting bad reviews now that it has appeared online.

    David E Kelly’s Wonder Woman seems to use the familiar Wonder Woman story as a vague history. Diana and Trevor had become a couple. Diana, however, did not want to give up crime fighting and start having babies. She wanted to keep on being Wonder Woman. Alas her old job working with Steve Trevor wasn’t going to pay for a private jet.

    So Wonder Woman incorporated herself so that she could fund Wonder Woman’s activities through merchandising. He CEO warned her that she had to be careful what she did as Wonder Woman because her “activities could be perceived as funding our operations here so it could expose us all to RICO charges if you do anything illegal”.

    Well, I tend to think she did do a lot of illegal things. Her citizen’s arrest of a drug dealer could have exposed her to assault charges. She set up a news conference and slandered Veronica Cale, calling her a drug dealer. A detective accused her of “torturing” a suspect when she got him to talk using her lasso of truth. Based on the information that she obtained, she broke into Veronica Cale’s lab. (The police were unable to obtain a warrant based on evidence obtained illegally.) A guard started shooting at her, she deflected the bullets and she KILLED him. Luckily for her some test subjects were in imminent danger. Because she knew about the danger posed to the test subjects and because the guard was firing at her a grand jury might have excused her behavior.

    It didn’t go to a grand jury, however. The U.S. Attorney General sent an investigator instead.

    Okay, this is a spoiler.

    The investigator turned out to be Steve Trevor. Steve Trevor told Diana that his investigation will conclude that she was acting in the defense of others. Plus, because Diana was not working with the police *cough*bullshit*cough* the charges against Veronica Cale would be allowed to stick.

    Note that the general public does not know that Wonder Woman was Diana Prince so there would have been no uproar over Steve Trevor dropping charges against an ex-girlfriend. It does seem a bit unethical however. He said he requested the assignment. He would have been ethically obligated to refuse it if it were offered to him. Seems to me that there’s a conflict of interest.

    Oh and here’s the thing: I thought Steve Trevor was in the air force. When did he become a lawyer?

    Anyway, I would have watched this show. Adrianne Palicki looked good in the final version of the costume and that’s all that matters to me.

    • Jamas Enright

      I was waiting for a mailbag thread before making a similar comment, but… yeah, if James and Ryan get the chance, check out the unaired WW pilot. Full of fun legal issues to shake sticks at.

  4. Interestingly, the Super Soldier Serum project would have been classified Top Secret at the highest levels. More than likely even above Roosevelt’s clearance level. And Classified Military projects fall under an entirely different set of regulations, namely Senate Oversight Committees. Being a non-public experiment, it wouldn’t be subject to any level of non-military scrutiny. And the project would never be exposed to a court, even if it produced hideously flawed results; National Security covers a lot of ground.

    • Melanie Koleini

      Top secret projects do sometimes see the light of day and get the government in trouble. (

      • Very true, some do indeed see publicity. However most projects listed as Black Projects do not. The F-15 was in use for over a decade before the public knew about it. The odds dictate that such a project wouldn’t see the light of day during it’s period. In addition, by the time that the ‘details’ of the serum’s process were released, pretty much everyone linked to the project except the subject would be deceased. So it becomes a moot point, really.

  5. Martin Phipps

    In the movie (which I finally got to see yesterday) Colonel Chester Phillips (played by Tommy Lee Jones) said “Dr. Erskine promised me an army and all I got was you”. Clearly there were plans to use the super soldier serum on selected candidates, if not all American soldiers. Plans were scrapped when Dr. Erskine died, presumably because they didn’t know how to make the formula.

    I don’t know how realistic this was. The drug had to be manufactured and I doubt it would have been done by Erskine alone without supervision.. Granted it would have been a top secret formula but somebody would have had to approve it. So did they say “It’s okay, Dr. Erskine, don’t tell us what is in the formula. Just give it to one of our soldiers and we’ll see what happens.”?

    • In the mythos, the most dramatically satisfying idea is that the general manufacturing process is known, but only Erskine + Steve Rogers ever came out exactly right. And if you don’t get all the details absolutely correct, the test subject either dies from a reaction, or is way too aggressive to make a good soldier, or burns out, etc. This limits in practice the amount of testing which can be done.

    • Melanie Koleini

      I haven’t seen the movie but it sounds like the serum failed Phase I clinical testing. This means, even though they had 1 good outcome, the serum shouldn’t be used without significant changes to the formula. With Dr. Erskine dead, no one else available can figure out how to perfect the formula. Even if the doctor had lived, he might not have been able to ‘fix’ the formula.

      • Of course, it didn’t help that Hitler’s people weren’t willing to take that chance, but that’s another issue altogether covered under other federal statutes.

  6. Hey! Here’s a good idea for a movie! Instead of testing the formula on a person without testing it first on animals, they use it on test animals and make some apes stronger and smarter.

    Oh… wait…

  7. Just to pick a small nit, the German rocket in question was properly named the A-4. V-2 was a moniker from Goebbels’ organization.

    Also, if memory serves, in the genuine origin, Erskine really was the only one who knew the formula. This was retconned later for plausibility.

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