Monthly Archives: August 2011

Batman: No Man’s Land, Part 2

This is our second post on the No Man’s Land story arc.  The subject this time is a little more serious than the first post in this series.

Following the earthquake and fire, Gotham City hospitals were quickly overwhelmed.  Unable to adequately care for many patients, there was talk of euthanizing the terminally ill.  In the end that plan was not put into effect because of a shortage of the necessary drugs.  We’re not too sure how much sense that makes, medically-speaking, but it raises a question: could doctors or nurses legally end a terminally ill patient’s life if it was clear that care could not be continued following a disaster?  In this case the comics were prescient, since that’s what happened in the aftermath of Hurricane Katrina.

In that case, one doctor was charged with murder but the grand jury did not return an indictment (there were, however, several civil suits filed).  Furthermore, the doctor maintained that she lacked the intent necessary for a charge of either murder or euthanasia.  This is true as far it goes, but there are lesser crimes that do not require an intentional killing, including involuntary manslaughter or even assault.

In any case, three laws were subsequently passed in Louisiana that give healthcare workers additional immunity during disasters.  First, healthcare workers are immune from suits for ordinary negligence (though not gross negligence or willful misconduct) in the provision of medical care during a disaster even if they are compensated for their work.  La. Rev. Stat. § 37:1731.1.  Second, healthcare workers are immune from suits for ordinary negligence and gross negligence during an evacuation following a “disaster medicine” protocol (i.e. evacuating the sickest patients last).  La. Rev. Stat. § 29:735.3.  Third, a “Disaster Medicine Review Panel” will review issues of medical judgment during a disaster, further protecting—although not immunizing—healthcare workers from both criminal and civil liability so long as “good faith clinical judgment” was exercised under the circumstances.  La. Rev. Stat. § 40:1299.39.3.

In the absence of such laws, however, there is little protection for doctors or nurses who euthanize patients in a disaster situation.  After all, necessity is generally not a defense to murder.  R. v. Dudley & Stephens, 14 QBD 273 DC (1884).  And no competent doctor or nurse could argue that they didn’t know that the patient’s death would be accelerated by the administration of the drugs, which makes it hard to avoid lesser included offenses.  The medical community has embraced the doctrine of double effect as an ethical rule that may permit euthanasia in these situations, but it is only an ethical rule, not a legal one.

We conclude, then, that it’s just as well that Gotham’s doctors did not attempt the proposed plan.  There is no statute of limitations on murder, and they may have found themselves at the mercy of a jury once Gotham was rebuilt.

(A side note: Oregon’s Death with Dignity Act would be of little help in a disaster, as the protocol that must be followed requires, among other things, a 15 day waiting period.)

Torchwood: Miracle Day Episode 8

The story continues. More plot development this week than last week, but we’re starting to go a bit off the rails in terms of legal analysis. One of the basic premises of the Law and the Multiverse project is to apply existing, real-world law to fictional settings that are like reality unless noted. Continue reading

Torchwood: Miracle Day Episode 7

Not a whole lot to say this week either, other than the fact that if there remained any doubt about what the authors believe about homosexuality, there isn’t anymore.

No real spoilers this time either. And really, the only “legal” issue here is more a historical one: Ellis Island didn’t function as a major immigration center after 1924, when the Immigration Act drastically reduced the number of immigrants who were granted leave to enter the country. So having the characters in the scenes during 1928 going through Ellis Island is an anachronism.

More than that, the people who did show up to Ellis Island between 1900 and 1924 generally didn’t have visas when they left their home countries. They simply came. Immigrants at Ellis Island were asked a series of twenty-nine questions mostly intended to ensure that the potential immigrant was capable of supporting him or herself and wasn’t contagious or anything like that. Remember, at its busiest somewhere north of 1 million people a year—10,000 a day—were passing through Ellis Island. There wasn’t time for anyone to be a stickler about paperwork. Indeed, many families find that their genealogical projects dead-end at Ellis Island, because records can be so perfunctory and incomplete that though tracing one’s parentage to Ellis Island isn’t that difficult, tracing it through Ellis Island can be a real trick.

At this point, we’re all just waiting to see what, if anything, the writers intend to do to get themselves out of this one. We’ll just have to see.

Daredevil #2

Our coverage of the recently re-launched Daredevil continues with the second issue.  There are some great legal topics here, including criminal procedure and legal ethics.

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The Homeland Directive

The Homeland Directive is a 2011 graphic novel by Robert Venditti and Mike Huddleston, put out by Top Shelf Productions. It’s something of a political and medical thriller and doesn’t involve superheroes at all, so it’s a little different from our normal fare around here, but it’s a strong offering by a smaller publisher, so it’s definitely worth a look. We’re leaving the evaluation of the story and art to others, as normal, focusing instead on the legal aspects of the plot. Spoilers inside. Continue reading

Superman Returns

Superman Returns was a pretty good movie (though hopefully the Man of Steel reboot will be an improvement).  The legal issues the movie raises are quite a bit different from our usual crime & torts fare, which is a nice change of pace.  Spoilers inside:

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ABA Blawg 100 Nominations

If we may be allowed a moment of rank self-indulgence: The American Bar Association is taking nominations for the 2011 ABA Blawg 100.  If you’re a lawyer or a law student, we invite you to consider nominating Law and the Multiverse.

Daredevil #1

Daredevil was recently relaunched with a new issue #1 (issue #2 comes out tomorrow).  The new series brings a more upbeat take on Matt Murdock, and importantly for us it also brings a new focus on Murdock and Foggy Nelson’s law practice.  Spoilers ahead:  Continue reading

Torchwood: Miracle Day Episode 6

Not a whole lot to discuss this week. The whole “concentration camp” this is obviously designed to provoke outrage, but somehow fails to do so, mostly because there doesn’t seem to be any particular reason for them. I mean, say what you like about the tenets of National Socialism, at least it’s an ethos. Here, we’ve got a situation where ovens for burning people alive are put into place on less than a week’s notice. Color us unconvinced.

In any case, there’s also the issue of whether it makes sense that the PhiCorp buildup could go unnoticed, even by the company’s own executives, for the twenty years or more that the show suggests is in view. Continue reading

Batman: No Man’s Land, Part 1

Our first post on the No Man’s Land story arc is a short one dealing with an issue of contract law.  Spoilers will be part and parcel of our discussion of this series, but it came out in 1999, so we feel the statute of limitations has run.

I. The Setup

After an earthquake destroys much of Gotham, Batman is feeling understandably overwhelmed.  In order to prevent some of the looting and recruit some assistance, he appeals to Oswald Cobblepot’s self-interest: help me out because the sooner the city is up and running the sooner you can get back to being a crime boss.  The alternative is to get on Batman’s bad side, so the Penguin joins up.  We later learn (in Batman Chronicles #12) that this arrangement was enforced via a contract signed by the various thugs and mobsters.  That contract is the subject of this post.

II. The Contract

Unfortunately, we only get a good look at two of the contract’s nine clauses, and parts of them are obscured (our guesses are given in brackets):

ITEM EIGHT: In addition to the clause against looting (above) the undersigned hereby agrees to rob no one of faith.  Actions will be grounded in logic, but during the course of this mission, nothing will be stated nor implied to any person or persons with the express intent of crushing spirit or will.  The injuries encountered in an undertaking of this magnitude will not be limited to those of the body.  This [shall] be kept in mind at all times.

ITEM NINE: No guns or firearms of any kind shall be utilized [or] displayed.  The undersigned hereby acknowledges [that if he or she is] caught bringing firearms into Gotham City in the [course] of this mission, the undersigned will be prosecuted [to the] full extent of the law.

The meaning of “rob no one of faith” is apparently not to refrain from stealing from priests and nuns but rather not to steal someone’s sense of hope or faith that things will improve.  The clause comes up when a thug feels compelled to lie to a kid who asks “Were you guys sent by Batman?” (the thug says yes, though he does not know this to be the case).

This a well-intentioned clause, but unfortunately it’s pretty poorly drafted.  The principle faults are that it is vague, unnecessarily restrictive in parts, and yet also not restrictive enough in other parts.  (Item Nine is basically fine except that we would add “while carrying out the Mission” to the end of the first sentence.)

“Faith,” “spirit,” and “will” are all too vague.  Something like “refrain from inflicting emotional distress” is better defined legally and serves essentially the same purpose.

“The express intent of crushing spirit or will” means that the person would have to actually express their intent (e.g. saying something like “I’m going to go be needlessly cruel to that little kid.”).   That’s much more restrictive than necessary.  We want the thugs to do more than refrain from intentionally distressing people.  They should also take reasonable care not to do so accidentally.

“This shall be kept in mind at all times” is not restrictive enough.  Someone can happily keep in mind the fact that the earthquake survivors may be psychologically injured while negligently or recklessly rubbing salt in the wound.  It would be better if they had an affirmative duty to help, at least to a reasonable extent.

Instead, we might offer something like this:

ITEM EIGHT: In addition to the clause against looting (above) the undersigned hereby agrees not to intentionally, recklessly, or negligently inflict emotional distress upon anyone in the course of carrying out the Mission.  The undersigned shall act rationally while carrying out the Mission except as necessary in order to avoid inflicting emotional distress.  The undersigned shall make reasonable efforts to relieve the physical as well as emotional and psychological injuries of Survivors encountered while carrying out the Mission.

Of course, both Survivors and the Mission should be defined elsewhere in the contract.  Presumably the mission already is, but we can’t say for sure.

Another thing we would do differently: we wouldn’t stamp it with “From the desk of Bruce Wayne.”  Given that it was Batman that talked the Penguin into cooperating, it seems monumentally stupid to then use Bruce Wayne’s letterhead on the contracts.  It beggars belief that no one put two and two together.

A final general contract drafting note: there had better be an indemnification clause in there.  That is, an agreement that if the thugs harm anybody or their property while carrying out the mission, then the thugs will take the heat rather than Bruce Wayne.

III. Conclusion

So far No Man’s Land is off to a good start!  There are some good legal issues here, and although we’d expect a better contract from a Yale Law alumnus, Batman can probably be forgiven the sloppy drafting given the tight schedule and the stress of cleaning up after a massive earthquake and fire.