Yearly Archives: 2011

Ghost Rider, the Devil, and Bearer Paper

Posted on July 20, 2011 by | 39 comments

The 2007 Ghost Rider movie was neither a particularly good movie nor a particularly good source of legal themes, but there was one interesting observation we seized on.  Spoilers ahead, though I doubt many tears will be shed over spoiling Ghost Rider.

I. The Setup

In the movie, Mephisto (one of many devils in the Marvel universe) has a habit of making Faustian bargains.  When it comes time to collect he sends his henchman, the Ghost Rider, with whom he has also made a pact, albeit one he has to enforce himself, of course.  The precise terms of these contracts vary but the practical upshot is always the same: the devil gets your soul, from which he can derive power.  The movie is centered around the fate of a particularly valuable contract for the souls of an entire town, one thousand in all, which Ghost Rider’s predecessor had hidden rather than give up to Mephisto.

So far this is fairly standard stuff.  The twist comes from the fact that there are warring factions with Marvel’s demonic community, and Mephisto’s son Blackheart wants the contract for himself.  In fact, he manages not only to get the contract but to collect the souls bound by it.  And this brings us to the interesting part.  If the contract was with Mephisto, how could just any demon who got ahold of it cash in on the deal?  The inescapable conclusion is that demonic contracts must be redeemable by the bearer.

II. Bearer Paper

For an attorney, the idea that jumps readily to mind is “bearer paper.”  Bearer paper is a kind of negotiable instrument, which you are probably familiar with in the form of checks and money orders.  You’re probably also familiar with bearer paper: you create it any time you make a check out to “cash,” for example.  As the name suggests, bearer paper is payable to the person bearing (i.e. physically holding) the bill, note, check, etc.  This is convenient, but also dangerous, since it becomes much easier for a thief (or an upstart young demon) to cash it.

So could Mephisto’s contract have been bearer paper under US law?  The first thing to consider is whether the contract could have been a negotiable instrument at all.  As defined in the Uniform Commercial Code, Article 3 (which has been adopted by most states):

“negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.

That’s a lot of text, but the basic rule is that a negotiable instrument needs 1) a fixed amount of money, possibly with interest; 2) a payee (i.e. the person getting paid, which can be the bearer); 3) a payable date, which can be “on demand” (i.e. whenever the payee wants) or a specific date; and 4) it generally can’t have any other conditions attached to it (e.g. no fair saying “Pay to the order of Bob if he paints my house.”).

And there’s the rub.  Mephisto’s contract is for souls, not money, and it plainly has some additional conditions on it (e.g. whatever it was Mephisto did for the people of San Venganza in exchange for their souls).  Of course, this is according to modern US law.  The contract was drawn up in the 19th Century.  Can we do better under the law of the time?

III. The Uniform Negotiable Instruments Law of 1896

The Uniform Negotiable Instruments Law was the predecessor to the Uniform Commercial Code, and like the UCC it was broadly adopted.  The UNIL or something like it was probably the law of the land at the time the contract was formed.  As luck would have it, its definition of a negotiable instrument is a bit looser than the UCC’s:

An instrument to be negotiable must conform to the following requirements:
1. It must be in writing and signed by the maker or drawer.
2. Must contain an unconditional promise or order to pay a sum certain in money.
3. Must be payable on demand, or at a fixed or determinable future time.
4. Must be payable to order or to bearer.
5. Where the instrument is addressed to a drawee he must be named or otherwise indicated therein with reasonable certainty.

This gets us closer.  The UNIL allows a negotiable instrument to be made for a promise rather than only money.  But that promise has to be unconditional, which means it can’t be something like “I promise to give the bearer of this contract my soul if Mephisto grants me three wishes.”  That pretty well spells the end of the bearer paper idea.  Presumably the infernal legal system is more flexible in this regard, although one wonders why Mephisto would be so foolish as to draw up such a contract in the first place.  Somebody ought to get that guy a lawyer.  One presumes he has ready access to plenty of them.

IV. Sidenote: The 13th Amendment

The 13th Amendment prohibits slavery and involuntary servitude.  However, it’s questionable whether Mephisto’s contract could be voided on that basis, since the damned are dead and have no rights.  Further, US courts have been reluctant to exert jurisdiction over the Devil.  See United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971).  Anyone considering entering into a pact with the Devil should definitely bear in mind that it may be difficult to obtain relief in court should the Devil prove less than trustworthy.

39 Comments

Posted in contracts, movies

Torchwood: Miracle Day Episode 2

Posted on July 18, 2011 by | 23 comments

There was a lot less legal content in this episode, but there are still a few things worth talking about. The biggest is probably whether it’s even remotely plausible to cook up an arsenic-related chelation therapy with chemicals available on your standard commercial airliner. The answer is “We haven’t the foggiest.” We’re lawyers, not chemists. But if the show treats chemistry the way it’s treated the law so far, we’re doubtful.  More serious spoilers follow. Continue reading →

23 Comments

Posted in criminal law, television, torts

She-Hulk Gets Disbarred

Posted on July 15, 2011 by | 16 comments

In the most recent She-Hulk run, we find in She-Hulk # 22 that Walters has been disbarred. We don’t find out why until # 29.

Let’s take a look at what happened. There’s spoilers here for those who care.

I. The Run Up

We learn about what went down in bits an pieces, but most of the story comes out in # 29 in the form of what amounts to a flashback. Why David et al chose to tell the story this way I’ll never know, but whatever. Walters was representing Arthur Moore, aka “Dark Art,” a one-off villain who hasn’t made any other appearances as far a I can tell. The guy had been accused of robbery and had come to Walters’ firm of Goodman, Lieber, Kurtzman, and Book (Holliway having stepped down), for defense. Unlike most other villains, Moore actually sort of picked on Walters fairly consistently for representing a villain, which was kind of weird. In any case, Walters manages to get his case dismissed because all of the evidence the prosecution had was acquired in an illegal search on a pretextual traffic stop. Evidence acquired in violation of the Fourth Amendment being inadmissible, the judge threw out the indictment. If we give the writers a pass for doing this in open court instead of with motions in limine, we’re doing okay so far.

Moore’s personal effects are then returned by the police, and Moore takes possession of them back in the firm’s offices. One of these things is some kind of mystical gem. Moore then asks whether he’s still protected by attorney-client privilege, and when Book tells him that he is, Moore uses the gem to telepathically transmit images of him doing a bunch of bad stuff to kids. She-Hulk goes berserk, punches him through a few walls, and after confronting him in the street, basically tells the entire crowd what Moore has done. On the next page, we find that she’s been disbarred and is leaving the firm.

II. Attorney-Client Privilege The Duty of Confidentiality

Attorney-client privilege is one of the most important features of legal ethics, and ethical issues aside, skilled litigation attorneys are going to be constantly on the lookout for discovery requests and lines of questioning that run up against it.  The foundation of the privilege is an attorney’s duty to keep a client’s confidences.  Unsurprisingly, blabbing a client’s guilt in public is nearly always a violation of that duty of confidentiality.

However, the rule is not absolute, and there are certain contexts where an attorney may reveal information delivered in confidence. One of them may actually apply here, namely N.Y. Rule of Professional Conduct 1.6(b)(1) and (2), which permit an attorney to reveal confidential information to prevent “reasonably certain death or bodily harm” and to prevent the client from committing a crime, respectively. If a client credibly says that he is going to hurt or kill someone, an attorney is not prevented from calling the cops. Depending on how one reads Moore’s revelations, it’s possible that he could have been communicating that there were still kids in danger. In which case he was basically declaring open-season on himself, at least insofar as those particular kids were concerned.

Still, that point is debatable, and if there weren’t any kids in trouble, Walters will be. The book also mentions that it’s inadvisable to attack a client. This is true.  Not only is it illegal, it’s likely an ethical breach as well, since the crime in question “adversely reflects  on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in violation of Rule N.Y. Rule 8.4(b).  After all, would you trust a lawyer who punched her last client through a wall?

III. Scope of Representation

Moore hired the firm to represent him in his robbery case. The information he revealed had to do with entirely different crimes that were not the subject of that representation.  Could Walters’ argue that she owed no duty of confidentiality because the information he revealed was beyond the scope of her representation?

Unfortunately for Walters, almost certainly not. First, scope of representation can only really be limited ahead of time and with the informed consent of the client. N.Y. Rule 1.2(c). Second, just before Moore did his thing, Book specifically affirmed that he was still protected by attorney-client privilege.  As N.Y. Rule 1.6(a) says, confidential information specifically includes information that is:

(a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.

The fact that Moore was using that to goad She-Hulk into doing something stupid is probably not going to matter: being a fiduciary means putting the interests of the client ahead of one’s own.  And being a criminal defense attorney means that sometimes you have to keep terrible secrets.

IV. Getting Disbarred

The question then becomes whether all of this was enough to get She-Hulk disbarred. That’s debatable. Disbarment is the most serious punishment in the legal ethics context. It means losing one’s ability to practice law, probably permanently, and getting disbarred in one state can serve as grounds for getting disbarred in the rest. Because it is so serious, disciplinary commissions—usually arms of state supreme courts—tend to impose lesser penalties like reprimands and temporary suspensions before they disbar someone.

Here, disbarment seems perhaps a bit much. Walters had not been up on any ethical charges to this point—as far as we know—and her breach does not actually seem to have put Moore in any legal danger. We don’t hear anything about Moore being prosecuted or otherwise getting in additional legal trouble. It seems plausible that the New York Departmental Disciplinary Committee would go for a lesser punishment. Still, it’s not impossible that disbarment could have resulted, as there is usually some discretion there, and publicly violating the duty of confidentiality is pretty serious.

Of note: in New York an attorney is automatically disbarred if he or she is convicted of a felony.  N.Y. Judiciary Law § 90(4).  If Walters plead guilty to a minor felony charge in regard to the incident (e.g. second degree assault), that would be sufficient to result in her disbarment.  If she stayed out of trouble for seven years she could apply for reinstatement.  N.Y. Judiciary Law § 90(5)(b).

V. The Set Up

Except for the fact that the whole thing was a set up. There were no kids in danger. Moore did what he did deliberately, at the behest of someone trying to destroy She-Hulk, personally and professionally. We find out that he had abducted the kids, but that they were all being kept in a cabin upstate, well cared for. He returned them once Walters’ disbarment was finalized. The DDC is not likely to look very kindly on this kind of sting job, and may well have been amenable to reversing itself should Walters have cared to make a motion. Turns out she didn’t, as she was pretty disillusioned by the whole affair, but it seems likely that Walters could have gotten her license back without the massive public relations stunt she pulls a few issues later.

VI. Conclusion

So basically, this story works. Breaching the duty of confidentiality is a violation of legal ethics, and can serve as grounds for getting disbarred. It’s unlikely, but not impossible, that the DDC would have disbarred Walters at this point, but one can argue that her status as She-Hulk makes her situation delicate enough that they may have gone straight for disbarment. And the fact that the whole thing was a set up may mean that she could have gotten her license back, but the story is pretty clear that she didn’t want to, so that’s more or less moot.

As the She-Hulk stories from # 22 on don’t involve Walters practicing law, there’s a lot less here than there is in the earlier stories. There’s probably another post or two to be had, but we’re reaching the end of the material here, at least with regard to legal ethics.

16 Comments

Posted in legal ethics

Manhunter, Volume 4, Part 3

Posted on July 14, 2011 by | 5 comments

We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to james@lawandthemultiverse.com.  Please note that you must be 13 or older to enter.  We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post.  (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)

Now on to today’s post.  The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue.  Spoilers ahead!

I. Evidence, Grand Jury Procedure, and More Legal Ethics

After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself.  There she shows the judge and prosecutor the videotape.  As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things.  Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.

First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present.  California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except

(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.

So Spencer was right (so far as it goes) to call the prosecutor into the meeting.

Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating.  As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.

Third, the judge correctly tells Spencer that the evidence can only be offered at trial.  The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence.  Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway.  Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence.  The prosecutor has no obligation to do the defense’s job for it.

Although the comic gets a lot correct there, there’s still a significant error here.  Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing).  For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up).  So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.

II. Jurisdiction

We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction.  The fact that Lord is a US citizen doesn’t change the result.

Of course, Wonder Woman could have been charged and tried in Switzerland.   It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply.  In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney.  See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat.  In cantons that allow non-lawyers to represent people in court she could certainly represent her.  See, e.g., §§ 2-3 of the Basel Advokaturgesetz.  But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court.  See, e.g., the Bern Kantonales Anwaltsgesetz.

However, even if she could represent Wonder Woman we don’t think it would be a good idea.  Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law.  Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct.  Those rules still apply even if Spencer is outside of the country.  Rule 1-100(D)(1).

Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland.  If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.

That’s all for this issue.  Be sure to enter the drawing!

5 Comments

Posted in criminal law, criminal procedure, evidence, legal ethics

Torchwood: Miracle Day Episode 1

Posted on July 11, 2011 by | 35 comments

(Update: we have discovered  a case on point for one of the issues raised in the post.  Check out section II of the post for more.)

Torchwood: Miracle Day is the fourth “season” of the British sci-fi series Torchwood, itself a 2006 spin-off of the ever-popular Doctor Who revival. The basic premise is that, all of a sudden, people stop dying. This is not as much fun as it sounds.

Interestingly enough for the purposes of Law and the Multiverse, the series so far has more than its fair share of legal issues. So we’re going to take a look at each episode as it comes out. We’ll leave reviews of the episodes for others, as always, but hope to be your source for legal analysis for the series. Spoilers will follow. You have been warned. Continue reading →

35 Comments

Posted in civil rights, constitutional law, international law

Manhunter, Volume 4 Part 2

Posted on July 8, 2011 by | 11 comments

Today we’re continuing our analysis of Mahunter vol. 4.  In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts.  For Part 2 we have more legal ethics issues and a note about grand juries.  These are some of the same ethical issues we discussed during our recent legal ethics CLE program.  Spoilers abound.

I. Trial Decorum and Grand Juries

During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor.  After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor.  It was just reflex.  I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”).  After a remark from the prosecutor the judge threatens them both with contempt.  Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.

There are many problems with this scene.  First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness.  The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case.  The problem with this explanation is that there isn’t a judge at a grand jury hearing, either.  Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.

Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.”  There is no room for a judge to make an exception.  Heck, there’s no room for a judge at all.  Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).

This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet.  Thus, there is only a potential defendant, who is no different from any other witness.  However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias).  28 USC 1867.  But this is after the fact, not during the hearing.

Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous.  Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings.  So her claim is either a lie or an admission of incompetence.  That’s the kind of nonsense that judges do not suffer gladly.

Second, Spencer’s outburst was also an unethical intentional disruption of the hearing.  ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”  (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)

(On a more minor point, the comic portrays the wrong number of grand jurors.  A federal grand jury “must have 16 to 23 members.”  Fed. R. Crim. P. 6(a)(1).  The comic shows a typical jury of 12.)

II. Allocation of Authority Between Lawyer and Client

Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains.  In fact, Spencer obtains video evidence proving as much.  However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good.  Spencer agrees to the constraint even though it will make her job much harder.

As it happens that’s exactly right.  ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”

So here Spencer is definitely doing the right thing.  If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.

III. Media Rights

In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it.  Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message.  The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”

Spencer was right not to sign any such deal.  ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”  The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.

Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights.  However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane.  The result is the same.

Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.

IV. Conclusion

Today was a mixed bag for Spencer.  She got some things right and some things wrong.  Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial.  At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room.  We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises.  We say stick to trials.  They’re more dynamic, and most people have at least a general sense of how they work.

11 Comments

Posted in criminal procedure, legal ethics

Transformers: Dark of the Moon

Posted on July 6, 2011 by | 6 comments

The Fourth of July weekend is a fitting time for the release of Michael Bay’s latest round of cinematic pyrotechnics, Transformers: Dark of the Moon. It’s better than the first two, though that’s not saying all that much. And like the first two, we’re not breaking any new legal ground here either. In fact, as seemingly befits a movie which is almost entirely derivative… there isn’t a whole lot to say that we haven’t covered already. But in any case, here’s a roundup. Continue reading →

6 Comments

Posted in civil rights, insurance, movies, property law

Law and the Multiverse Holiday Special – Fourth of July Edition

Posted on July 4, 2011 by | 1 comment

Today is the Fourth of July, or Independence Day in the US (our non-US readers will have to indulge us on this one).  Traditionally this is celebrated with fireworks, both amateur and professional.  Fireworks are regulated at the local, state, and federal levels, but today we’re interested in the federal regulations.  Specifically: if superpowers were fireworks, how might they be classified?

I. The Classification System

In the past the US used a system that divided explosives into three classes: A, B, and C.  Essentially, Class A included high explosives and bulk packages of low explosives.  Class B included professional fireworks.  Class C included common fireworks.  Most Class and A and B explosives required a Bureau of Alcohol Tobacco and Firearms license, whereas Class C explosives did not.

Now the US uses the United Nations explosives shipping classification system.  The BATF regulations generally refer to the UN numbers (e.g. UN0333 is fireworks class 1.1G) rather than the class, and the Department of Transportation regulations may refer to the class.  The US classifications and regulations are described in 27 CFR 555.11, 49 CFR 172.101 and 49 CFR 173.52.  For example, “consumer fireworks” are defined as

Any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the U.S. Consumer Product Safety Commission … . Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials. Consumer fireworks are classified as fireworks UN0336, and UN0337 … at 49 CFR 172.101. This term does not include fused setpieces containing components which together exceed 50 mg of salute powder.

UN0336 and 0337 are classes 1.4G and 1.4S, respectively.

II. Superhero Fireworks

So supposing a superhero wanted to use his or her powers to put on a show, would they need a permit?  And if so, what kind?  (Note that we’re ignoring the fact that the definitions generally wouldn’t apply to people, e.g. a superhero is not a “small fireworks device”).  Here we’ll discuss Jubilee, Cannonball, the Human Torch, and the Green Arrow, who uses explosive devices for some of his arrows.

Although she no longer possesses this power, Jubilee’s iconic original power was the creation and control of “energy plasmoids,” which look a lot like fireworks.  The power level ranged from the purely visual to dangerous explosions.  As such, Jubilee’s power could fall anywhere from a sparkler (UN0337 / 1.4G) to a large display firework (UN0335 / 1.3G) or bulk salute (UN0333 / 1.1G).  The largest commercial fireworks contain about 1kg of flash powder, approximately equal to .6kg of TNT, which sounds about right for the upper limits of Jubilee’s power.  Thus, Jubilee might or might not need a license in order to use her powers for a fireworks show.

Cannonball’s controlled explosion power, by comparison, definitely starts out at the bulk salute level.  Curiously, there is no explicit upper end to the amount of explosive material that can be used in a display firework, and the explosives may function by conflagration (i.e. simple burning), deflagration (i.e. a subsonic low explosive), or detonation (i.e. a supersonic high explosive).  So despite the fact that Cannonball’s explosions are extremely powerful, they might still be classified as a display firework.

The Human Torch is a different case altogether because he does not cause any explosions but rather simply burns.  Technically this makes him a consumer firework: he produces an aerial visual effect by combustion but produces no explosions.  Thus, no license required.

Finally, the Green Arrow is unique in this group for using conventional explosive devices rather than superpowers.  Because of this he would follow the normal regulations: strapping a sparkler to an arrow wouldn’t require a license, but using a time-bomb arrow as a makeshift firework shell definitely would.

That’s it for today.  Have a happy (and safe!) Fourth of July!

1 Comment

Posted in administrative law

Green Lantern

Posted on June 29, 2011 by | 22 comments

So there’s this Green Lantern movie out. Reviews have… not been kind. There may actually be some kind of dogpile effect going on here, i.e. Green Lantern being the movie that it’s awesome to hate on. I mean, sure, it’s bad, but it’s no Rise of the Silver Surfer, which inexplicably got better reviews. Green Lantern’s CGI was admittedly pretty dumb though. Hard to argue with that.

Anyway, what about the legal aspects? Well, there are a couple. Oddly enough, most of them don’t involve much in the way of spoilers this time around. Still, we’ll keep the actual review inside, just in case. Continue reading →

22 Comments

Posted in movies

Mailbag for June 27, 2011

Posted on June 27, 2011 by | 8 comments

Today’s mailbag is a grab bag of questions from astute reader Jessica.  We have questions about rogue superheroes, more on the Negative Zone and the Eighth Amendment, and personal jurisdiction and The Dark Knight.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Rogue Superheroes and RICO

For the first question, Jessica asks “[A]re the X-Men or the Avengers complicit or in any way culpable if [Wolverine kills someone or uses excessive force] while out with a team, given that they know he does this?”

This is a great question and one we’ve been thinking about for a while.  We’ve talked about how RICO statutes could be used against supervillain organizations but we haven’t considered how the laws might apply to a superhero organization with rogue members.

First, a brief summary of RICO (Racketeer Influenced and Corrupt Organizations) laws.   The original RICO law is the federal version, 18 USC 1961-1968, although many states have passed their own similar laws.  The general pattern of the law is that a person who is a member of an organization that has committed any two of a list of 35 crimes within a 10 year period can be charged with racketeering, which is a serious felony.  To be charged with racketeering the member must have done at least one of the following (paraphrased from 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

It’s important to note the phrases “derived from racketeering activity” and “through a pattern of racketeering activity.”  Merely investing income derived from an organization doesn’t count: it has to have come from racketeering activity (e.g. counterfeiting, theft, drug trafficking, securities fraud).  Similarly, merely controlling or participating in an organization doesn’t count: the control or participation has to be accomplished through a pattern of racketeering activity (e.g. extortion, bribery, murder).  These requirements prevent innocent members of an organization from getting swept up in a RICO action.

The practical upshot of this is that even if a member of an organization (Wolverine, for example) commits the required crimes (e.g. murder), the other X-Men may not be criminally liable under RICO if their own activities (investment, control, or participation) were unrelated to racketeering activity.  It’s not like Professor X routinely asks Wolverine to murder people or the other X-Men routinely assist Wolverine in committing murder.  Perhaps the biggest issue is if any of Wolverine’s unlawful activities brought money into the organization.  X-Men who invested those ill-gotten gains could find themselves facing charges (and a civil suit) under RICO.

Basically, RICO doesn’t work very well if applied to a fundamentally law-abiding organization, and this is by design.

II.  The Negative Zone and the Eighth Amendment Revisited

The second question is about the emotional effects of the Negative Zone: “Would [the effects] be a factor in determining the conditions for the purposes of Eighth Amendment compliance?”  In other words, does imprisoning someone in the Negative Zone violate the Eighth Amendment because of the Zone’s effects on people’s emotions and mental health?

In short, we think the answer is no.  The fact is that even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the NZ is worse enough to be considered cruel or unusual punishment.  As the Supreme Court has said:

“The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”  Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

Furthermore, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Farmer v. Brennan, 511 U.S. 825, 834 (1994).  Prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id. at 833.

In the Negative Zone case the emotional effects are not really part of the punishment but just a side effect of the place.  Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary.  Further, the side effects are not controlled or intentionally inflicted by anyone.  Thus, the effects are not inflicted wantonly (i.e. deliberately and unprovoked).  A charge of deliberate indifference could probably be eliminated by offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone.  Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities.  “The Constitution does not mandate comfortable prisons,” as the Farmer court noted, only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

III. The Dark Knight and Forcible Personal Jurisdiction

The last question is about The Dark Knight (spoilers if you haven’t seen the movie yet, which you really should).

“In the Dark Knight, a Chinese national commits crimes on American soil, or at least against American citizens (even if they were all money-related crimes), and then returns to China knowing he won’t be extradited.  Batman follows him, kidnaps him, and dumps him back in America in police custody.  What are the basic legal repercussions of this, given Batman’s pseudo-status with the police?  What if it had been a completely free agent instead of Batman?”

As it turns out, the Chinese national is out of luck, assuming the prosecutor wants to file charges against him.  The Supreme Court has consistently held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”  Frisbie v. Collins, 342 U.S. 519, 522 (1952).  This is true even if the abductors were government agents (in the Frisbie case the defendant Collins was allegedly abducted by police officers and taken to another state to be tried).  This rule, known as the Ker-Frisbie doctrine, has been upheld quite recently at the circuit level.  See, e.g., United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).

However, the abductor may still be liable under the Federal Kidnapping Act, 18 USC 1201.  And if the abductor were a state actor (or at least seen to be one politically), then China would likely take a very dim view of it, to say the least.

That’s all for today’s mailbag.  Keep your questions coming in!

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