Superman: Grounded Vol. 1

Superman: Grounded is a twelve-issue story written by J. Michael Straczynski which took up Superman # 700-712. Issues 700-706 have been released in hardcover, with 707-712 scheduled to be released next month. The basic premise of the story is that in the aftermath of the 100 Minute War, in which New Krypton is destroyed, Superman is feeling disconnected from the average American, and really just Earth in general. He gets… uncharacteristcally mopey and philosophical, and the series raises a number of the most interesting and pervasive philosophical and ethical issues with the concept of superheroes, though it fails to come up with anything like adequate answers for any of them.

This isn’t going to be a particularly long post, but there were a number of minor legal issues, most of which we’ve talked about previously, that come up in the course of the story.

First, in the very opening pages of # 700, a woman accosts Superman, accusing of him of not being there for her husband, who recently died of brain cancer. We talked about the duty to rescue back in January, and as you may recall, there is ordinarily no legal duty to rescue, or even to go out of one’s way to do good for others. But this is more because it’s the only practical way of running a legal system than because anyone thinks it accurately reflects moral norms. Which is what really gets to Superman here. No one suggests that he had any legal duty to do anything for this man, but the woman certainly seems to think he had a moral duty to do so, and Superman has trouble coming up with a plausible explanation for why she isn’t right. Which is about as far as that particular line of inquiry goes. This story is far better at raising questions than it is at answering them. Which is sort of in keeping with Straczynski’s oeuvre, when you think about it.

In # 701, Superman stops in at a diner in Philadelphia and tries to order a cheesesteak but realizes he doesn’t actually have any money. He doesn’t have enough cash, as he doesn’t normally go shopping while in uniform, nor does he have any ID or a credit card. This harkens back to one of the first posts we made, about superheroes and alter egos. If Superman wants to maintain the secrecy of his identity as Clark Kent, he’s not going to be able to use a credit card with Kent’s name on it, and even though credit card companies seem to be willing to issue cards to dogs, even the dogs have fixed addresses.

Superman winds up paying for the meal with labor, i.e. he cleans up the back room in about a second and a half. Is this legal? On the face of it, sure: business owners are entirely capable of setting whatever prices they choose for their goods, and there’s nothing absolutely preventing them from accepting service instead of cash or other negotiables. But it’s certainly discouraged, as there’s the real potential for tax evasion and other forms of financial malfeasance there. The government has an interest in tracking financial transactions in so far as they are entitled to taxes on those transactions—Pennsylvania has a 6% state sales tax, and Philadelphia County adds another 2% on top—and the IRS doesn’t really like it much either; strictly speaking, barter transactions should be reported as taxable income. Louisiana has actually passed a law making it illegal to use cash in second-hand sales, trying to put a stop to the market in stolen property and the underground economy in general. One or two instances or transactions isn’t going to be a problem, but if an audit reveals that this sort of thing happens with regularity, eyebrows will go up. It’s possible to explain this away, but it would have to be explained.

On the very next page, Superman confronts some drug dealers who boldly assert that he can’t do anything to them, as he can’t go into their property without trespassing, and using his x-ray vision, while not trespassing, would not produce any admissible evidence. They’re right on the first count but wrong on the second, since the Fourth Amendment likely wouldn’t apply to Superman.  Nonetheless, simply seeing drugs inside a building wouldn’t give Superman a legal justification for trespass.

So how does Superman solve this dilemma?  Easy, he just light their stashes on fire, which is an…interesting choice. Superman is probably guilty of arson here, which is defined in Penn. Cons. Stat. § 3301(a), so he’s trading a misdemeanor (simple trespass) for a dangerous felony (arson). He’s definitely deliberately setting fire to a structure. But this also has to be either with the intent (or reckless disregard for) putting another person in danger, including a firefighter, or with the intent to damage or destroy the structure. He can probably say that he had the situation in control to the point that no one was going to be in danger—he is Superman after all—but he’s probably going to lose on the damage to the structure element. Yes, his intention was to destroy the drugs, but the way he chose to do that had the unavoidable side-effect of setting fire to the building, and he knew that. So, uh, what the hell, Supes?

A few issues later there’s sort of a nod to his immigration problems when he uncovers a cell of aliens who have set up shop in Detroit. He says, under his breath, “Could you possibly have picked a worse time to immigrate here illegally…?” They immediately call him on his hypocrisy, and he doesn’t really have an adequate comeback. So that’s about as far as that goes. But he later convinces them to start a biotech company in Detroit, and the FDA seems to have basically just signed off on that suspiciously quickly. A reporter asks “Mr. [Director], isn’t it unusual for the FDA to approve such activities by a firm this new to the research industry?” The real question has nothing to do with how new the firm is and everything to do with the fact that the approval process seems to have taken about eight hours. Try eight months, if not eight years. Also, the head of the FDA is the Commissioner not the Director. But whatever.

A few issues later, Superman barges in to the basement where a child has been thrown after having been beaten by his father. This, as it turns out, is probably okay. Even though Superman isn’t a mandatory reporter under Michigan’s child abuse prevention laws, most states either explicitly permit or will at least tend to look the other way on things like trespassing where the welfare of a child is at issue. The rest of the incident goes pretty smoothly. Superman doesn’t hurt the low-life father, he takes him to the cops, to take things from there. Any evidentiary issues are overcome by the testimony of the mother and child.

We’ll take a look at the rest of the story once the second volume comes out, but so far, legal issues are handled both in surprising detail and relatively well. They manage to avoid some of the most obvious pitfalls into which comic books frequently fall, and they name-check some of the more arcane issues. Mis-identifying the head of a federal agency isn’t something we’re going to quibble all that hard about, as we had to look it up ourselves.

12 Responses to Superman: Grounded Vol. 1

  1. As far as the alien biotech firm goes, I can think of two potential legal questions. The first is procedural – if the aliens are adapting their technology for humans instead of inventing “from scratch” can they get expedited approval for human testing since the devices will (presumably) have undergone “non-human testing”? The second one is patent law – if the aliens don’t own the patent on their world for the device, could the off-world patent holder later sue? Does that require a treaty with the US? Would how much “adaption” for humans the devices need play a role?

    • Ryan wrote this post, but the patent question is more up my alley. The answer is that the off-world patent holder would normally be out of luck because patent infringement is a territorial claim of action. You have to own a patent in the jurisdiction where the infringement is happening in order to sue for infringement. Consider the U.S. patent infringement statute, 35 U.S.C. § 271: all of the infringing activities must occur in the US. That’s basically how it works everywhere.

      But it’s not necessarily how it must work. So, in classic law school fashion, let’s suppose some facts that might change the outcome. Suppose the alien patent statute allowed the patent owner to sue for patent infringement no matter where the infringement occurred, so long as the infringement was done by citizens of that country (which, presumably, the Earth-bound aliens still are). Now suppose the Earth-bound aliens were tried and found liable in an alien court that followed judicial procedures broadly similar to a US court and that the Earth-bound aliens had a full and fair opportunity to defend themselves. Basically, let’s assume the defendants showed up in court and lost the case fair and square. This gives the alien court both personal and subject matter jurisdiction over the case.

      Under those facts, the alien patent owners may be able to collect under the Michigan version of the Uniform Foreign-Country Money Judgments Recognition Act (i.e. Michigan Act 20 of 2008). Under the Michigan UFCMJRA, a “foreign country” is broadly defined as “a government other than” the United States, a state/district/territory, an Indian tribe, or any other government that falls under the Full Faith and Credit Clause. An alien government wouldn’t fit any of those exceptions, so the UFCMJRA could very well apply.

    • As for the regulatory approval question: I don’t think the non-human testing would expedite things significantly. Essentially all drugs are tested in animals before human trials start, so it’s a normal part of the approval process.

      And to be clear about the last two questions: (1) The UFCMJRA doesn’t require an explicit treaty, and (2) adapting the devices for humans could make them patentable, as long as the adaptation was not obvious. So a drug might require considerable tweaking to make it work for humans, but if it’s something as simple as making a medical device shaped differently to fit human proportions, that’s probably obvious. Still, the patent would be limited to the human version, not the underlying technology.

    • I can’t comment on the legality, but from a scientific point of view, non-human testing requires that the non-human be a suitable model for how the drug or treatment would behave in the human body. Is this a well enough known alien race that there have been studies done on how compatible their biochemistry is and whether a drug would have the same effect on both species? Non-human testing is only useful when you’re likely to get the same response.

  2. “The second one is patent law – if the aliens don’t own the patent on their world for the device, could the off-world patent holder later sue?”
    That would presumably depend on alien patent law. Those devices may well be in the public domain in alien society.

    But that brings up an issue with US patent law: if they’re simply importing devices that are well-known in the alien culture, are they eligible for patents on Earth? It seems like they probably wouldn’t be.

    • Probably not, for two reasons. Under the current U.S. patent law (which will soon change due to parts of the America Invents Act becoming effective), “A person shall be entitled to a patent unless … the invention was … described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.” 35 U.S.C. § 102(a). It seems likely that the invention would be described in a printed publication on the alien world.

      The other reason is that “A person shall be entitled to a patent unless … he did not himself invent the subject matter sought to be patented.” 35 U.S.C. § 102(f). If they weren’t the inventors then they can’t get a patent.

      Under the America Invents Act things get easier. “A person shall be entitled to a patent unless …the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” Amended 35 U.S.C. § 102(a). Note that there’s no territorial limitation in the new § 102(a), so even public use on the alien planet is enough. There’s no need to find an alien printed publication.

  3. > He doesn’t have enough cash, as he doesn’t normally go shopping while in uniform, nor does he have any ID or a credit card.

    This sounds like “idiot-ball” plotting. He used to (or should) carry around some cash in a pouch in his cape, inside (or alongside) his Clark Kent clothes. Or maybe it was in his belt. He’s been in enough situations where he’s been depowered, or doesn’t want to use his powers for some reason, to know that keeping some cash in the suit for emergencies is good planning.

    • Well… maybe and no. “No” in that he actually did have cash on him–we see it in a pocket in his cape–it just wasn’t enough. But “maybe” in that he’s decided to walk across the country, which he should know means he’s going to need money on a regular basis. But the whole premise is that this really isn’t something he’s thought through all that well, and this was his first afternoon out. The subject never comes up again, suggesting that he started carrying more money after that.

  4. Mr. Straczynski seems to have some interesting ideas about Superman’s mentality. Not only did he have no way of knowing that the husband in question had brain cancer, he had no way of even knowing that the husband existed in the first place. There is no law, rule, guideline or even socially acceptable behavior that requires me, a private citizen, to know that in Miami, Florida a man is dying of AIDS at this moment. After that is the question of what exactly Superman was supposed to do. Admittedly I’m slightly more familiar with Marvel than DC, but I’m fairly sure that cancer-healing is not listed as one of his powers. Did she expect him to use his heat vision to try to treat it (something guaranteed to fail). Perhaps use Kryptonian technology that was designed for completely different life forms?

    I’m not saying that it’s a bad idea for a regular citizen to be angry at him out of envy, a feeling of helplessness and grief. I knew a student who was angry at Bush because of the student’s loans, even though the loans were a problem because his father had suffered an injury. It could even be a good idea for Superman to feel angry that, for all his power, he still can’t save everyone. The problem is when you have writing like this. Admittedly it isn’t about the law and not part of the regular stuff of this site, but some things are just stupid enough that they need criticism.

    • Did she expect him to use his heat vision to try to treat it (something guaranteed to fail).

      Yep. In so many words. Look, the story has problems. The biggest one may well be the possibility that the whole premise is irredeemably silly. We really do try to leave the criticism as such of the works we analyze to others.

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