Monthly Archives: May 2012

Law and the Multiverse Holiday Special: Memorial Day

Today is Memorial Day in the United States, which originated as a day of remembrance for Union soldiers who died in the American Civil War.  (It’s also a federal holiday, so please excuse the late post!)  Not too many comic book characters go back to the Civil War, but there is at least one character who participated in it, namely Wolverine.  While the mainstream continuity version of Wolverine was born in the late 1880s, the film version—as shown in X-Men Origins: Wolverine—was born in 1845 and fought in the Civil War on the side of the Union.

Naturally, Wolverine didn’t die in the Civil War, so he doesn’t quite fit the bill for Memorial Day.  But his Civil War veteran status raises an interesting question: could he qualify for a pension?

The Civil War marked a major expansion in military pensions with the passage of a new military pension act on July 14, 1862.  However, pensions were initially only available to soldiers who had been injured or disabled in the line of duty.  17 Stat. 566-69 (1863).  Given his healing factor, Wolverine wouldn’t qualify.  The Dependent and Disability Pension Act of 1890 removed the battlefield injury requirement but still limited pensions to veterans who had become unable to perform manual labor.  Once again, Wolverine is out of luck.

Finally, in 1907, the McCumber bill expanded pensions to include all Civil War veterans who served at least 90 days and were at least 62 years old.  34 Stat. 879 (1907).  Born in 1845, Wolverine would qualify beginning the same year the bill was passed.  Under the new law, he would collect $12/month at 62, $15/month at 70, and $20/month at 75.  That $20 would be $462 in today’s money, or $5500/year.  Later laws increased the pension amounts somewhat but they were never indexed to inflation.

So could Wolverine have collected that pension in perpetuity?  He probably could have.  The government continued to pay pensions to Civil War veterans and their families long after the war ended.  Gertrude Janeway, a widow of a Civil War veteran, collected a widow’s pension until she died in 2003.  As of 2009 there were still two children of Civil War veterans drawing veterans’ benefits.

On the other hand, a few hundred dollars a year hardly seems worth exposing his immortal status over, not to mention that attracting the attention of the military is probably pretty low on his list of priorities.  Still, it’s nice to know that, as a veteran, Wolverine would continue to be supported for his service to the US government.

Ororo T’Challa, Career Criminal?

Our latest monthly column at Subculture for the Cultured has just been published.  It’s about the law of weather modification, and it contains some interesting surprises!  Check it out!

Law and the Multiverse CLE Reminder

We have two new live CLE courses coming up, courtesy of Thomson West: What Superheroes and Comic Books Can Teach Us About Constitutional Law today, May 23rd at 1PM Eastern and Real-Life Superheroes in the World of Criminal Law on May 30th, also at 1PM Eastern.  CLE accreditation is available in most states.  Last year’s CLE courses were a big hit, so we hope you’ll join us again this year!  Remember to use promo code MULTIVERSE30 for 30% off!

Death and Taxes and Zombies

Today we are excited to bring you a guest post from Professor Adam Chodorow of the Arizona State University’s Sandra Day O’Connor College of Law.  This post is excerpted from Professor Chodorow’s forthcoming article in the Iowa Law Review entitled Death and Taxes and Zombies.  You can view the full version of the article free online.  Thanks to Chris for tipping us off to the law review article and thanks to Professor Chodorow for preparing this excerpt.

The U.S. stands on the brink of financial disaster, and Congress has done nothing but bicker.  Of course, I refer to the coming day when the undead walk the earth, feasting on the living.  A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead.  The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively.  The time to prepare is now, before panic sets in, and it is too late.  This post begins this critical task by considering whether someone who becomes a zombie should be considered dead for estate tax purposes.

I. A Zombie Taxonomy

Because the tax consequences of a zombie apocalypse may depend on the type of zombie encountered, I begin with a brief taxonomy of zombies.  While the word “zombie” originates in Haitian voodoo, the term has been applied to a variety of creatures over the years, such that there is now no generally accepted definition.  Congress has not seen fit to include a definition in the tax code, and, indeed, has not deigned to use the term.  Thus, developing a tight definition is not strictly necessary.

What follows are some of the key distinctions that may—or may not—have legal significance.  Some zombies are controlled by others (traditional Haitian zombies and the armies of Inferi raised by Lord Voldemort), while others are self-motivating (the zombies from George Romero’s ground-breaking documentary, Night of the Living Dead; the hit reality television program, The Walking Dead; and the classic work of putative fiction, Pride and Prejudice and Zombies).

Within the category of self-motivated zombies, distinctions may be made based on volition, abilities, and personality.  Some zombies slowly stumble along in search of brains upon which to feed, exhibiting little personality or ability to think (Night of the Living Dead).  Others move quickly, organize, and learn (Dawn of the Dead).  Still others retain some of the memories or personalities of the original person (American Zombie and Pet Sematary).

Another way to distinguish among zombies is the method by which people become zombies.  Controlled zombies are typically created through some form of dark magic.  Zombies can also be created by viruses (either naturally occurring (Zombieland and Zone One) or man-made (28 Days Later and I am Legend)), radiation (Night of the Living Dead), biochemical agents (Planet Terror), and even a mysterious meteor (The Zombies of Lake Woebegotton).  In some cases, one must be infected by a zombie to become a zombie (World War Z); in others, no prior zombie contact is necessary (Lake Woebegotton).  In some cases it is unclear how zombies are created.  Take, for example, Michael Jackson’s classic thriller, Thriller.  We simply don’t know what caused the first person to go zombie, and unless Michael comes back, we likely never will.

Finally, some people must die before becoming zombies, while others appear to make a seamless transition from living to undead.  There is often a connection between cause and the type of zombie created.  For instance, zombies arising from viruses often retain some vestige of their former personalities.  Controlled zombies are typically dead and retain none of the original person’s personality or memories.  Zombies of those who don’t die first are typically fast, while those whose progenitors died are typically slow.  However, it is possible to find zombies in each category that do not fit the typical pattern.  The Venn diagram is so confusing that I have opted to omit it in the interests of clarity.  This chart from Yahoo! Movies gives some sense of the complexity involved.

II. The Dead, the Undead, and the Death Tax

The most pressing tax issue raised by a zombie apocalypse is the application of the so-called “death tax,” which imposes a tax on the transfer of the estate of a “decedent.”  Zombies have been described variously as the “walking dead,” the “undead,” and the “living dead,” raising the question whether the estate tax should apply when a taxpayer becomes a zombie or, in the alternative, after a person’s zombie has been dispatched.

The definition of death, and therefore of a decedent, has generally been left to the states, each of which has its own definition.  That said, there has been a recent trend away from a definition that focuses on heart function to one that focuses on brain function.  Whether people who become zombies would be considered dead for state law purposes depends both on the definition used and the type of zombie involved.

It seems a stretch to conclude that those who transform seamlessly into zombies should be considered dead.  They never lose heart or brain function, though they now function quite differently from before.  While it might be tempting to declare them dead, significant line-drawing problems would arise as one tried to distinguish between zombies and those who have suffered some mental or physical breakdown.  Declaring such zombies dead would open the door to declaring dead a wide range of people currently considered to be alive.

The more interesting question is whether someone who has clearly died under state law and then been reanimated as a zombie should be considered dead.  For those whose dead bodies are simply under the control of a sorcerer, it would seem that the answer is yes.  A corpse magically manipulated by another is nothing more than a puppet with no heart or brain function and should qualify as dead under state law.

In contrast, most self-motivated zombies likely would be considered alive under most state law definitions.  They must have a biological mechanism by which they think and move, which typically requires brain function and some means of keeping the body nourished.  Indeed, in The Walking Dead, tests reveal that the brain function ceases and then restarts sometime later, though at a far lower level than before.  The normal way to dispatch a zombie is by destroying the brain, strongly suggesting that they would pass most brain-function definitions of death.

However, the question isn’t whether zombies can be considered alive, but rather whether, if someone’s zombie is alive, the original person can still be considered dead.  This hints at the far larger questions of how the law should treat resurrection generally and whether different types of resurrection should be treated differently.  For instance, some, like Lazarus, return intact.  Others may return as flesh-eating monsters.  Shockingly, the tax code is silent on this issue, a silence that is even more surprising when one considers that most of our legislators purport to be devout Christians, for whom resurrection is a core belief.

Those who come back fully intact would seem to be still alive, much as people legally presumed dead are still alive when they turn up years later (See, e.g., Castaway).  Those who return in altered state present a more difficult question.  A flesh-eating automaton is just not the same person the Nobel laureate he used to be.  In some real sense, the laureate has died, even if his body and some part of his brain live on.  Thus, it seems possible that the law could deem the zombie alive, without necessarily affecting the status of the original as dead.

Of course, the question we are trying to answer is not whether a person who becomes a zombie should be considered dead under state law.  Our goal is to determine whether such a person should be considered a decedent for federal estate tax purposes.  Tax law typically piggybacks on top of state law, meaning that someone considered dead for state law purposes would normally be considered dead for federal tax purposes as well.  However, federal tax law deviates from state law in a number of situations, including the question of what constitutes a devise, bequest or inheritance.  Thus, it is not unreasonable to think that a person could be dead under state law, but not a decedent for federal tax purposes.  Conversely, someone alive under state law definitions could be deemed dead for federal tax purposes.

The key justification for allowing federal tax law to deviate from state law is uniformity.  It would be unseemly if tax law deviated from state to state because of differences in state law.  Administrability is also a chief concern.  Imagine trying to determine whether people are dead under 50 different state laws while in the middle of a zombie apocalypse.  These concerns strongly suggest the need for a uniform federal standard, detached from the myriad state laws.  However, they do not suggest what the standard should be.  As with the state laws defining death, federal tax laws are surprisingly silent on the legal consequences of becoming a zombie, creating a dire need for clear guidance.

III. Conclusion

The application of the death tax to zombies only scratches the surface of the legal issues the undead present.  For instance, it is necessary to determine whether one remains married under state law to someone who becomes a zombie, and, if so, whether the Defense of Marriage Act, bars Federal recognition of said marriage.  And, then there are vampires.  But such issues must await another day, assuming it is not already too late.

Who Owns Wolverine’s Bones?

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, ”on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

Daredevil: Yellow

Daredevil: Yellow is a fantastic retelling of Daredevil’s origin story by Jeph Loeb and Tim Sale, whose watercolor illustrations are a great match for the setting and mood of the story.  The subtitle is a reference to the color of Daredevil’s original costume.  It’s part of a related series by Loeb and Sale that includes Spider-Man: Blue, Hulk: Gray, and the (hopefully forthcoming) Captain America: White.  The story is framed as a retrospective by Murdock, relating how he came to start a law practice with Foggy Nelson, become Daredevil, and fall in love with Karen Page.

Nelson and Murdock’s first big break comes when the Fantastic Four approach the firm for representation.  We don’t get a lot of detail regarding the work, but Reed Richards describes it as “the lease on the Baxter Building, patents, that sort of thing.”  Foggy eagerly replies “We’d be happy to.  And anything else you might want to bring us, Mr. Richards.”  This is all incidental to the main storyline, but it raises an issue near and dear to my heart: the practice of patent law.

I. The Peculiarities of Patent Law

The practice of patent law can be divided into two broad categories: practicing before the Patent and Trademark Office and “everything else.”  Practicing before the PTO includes:

preparing and prosecuting any patent  application, consulting with or giving advice to a client in contemplation of  filing a patent application or other document with the Office, drafting the specification or claims of a patent application; drafting an amendment or reply to a communication from the Office that may require written argument to establish the patentability of a claimed invention; and drafting a communication for a public use, interference, reexamination proceeding, petition, appeal to the Board of Patent Appeals and Interferences, or other proceeding.

37 C.F.R. § 11.5.  That’s quite the laundry list, but basically, this means drafting and applying for patents, which can involve a lot of communication with the Patent Office, including some adversarial procedures in which a patent is opposed by another party.  It also includes giving advice and counsel regarding alternatives to patents, including those available under state law.  Note that it doesn’t include anything to do with trademarks; with one very narrow exception, only attorneys can do that, and any attorney can.  37 C.F.R. § 11.14.

“Everything else” includes other transactional matters (e.g. negotiating patent licenses) and litigation (e.g. suing for patent infringement).

Why does this distinction matter?  Because not just anyone—or any attorney—can represent someone before the Patent and Trademark Office, whereas any attorney can handle “everything else.”  Admission to practice before the PTO requires a technical background (broadly speaking: a bachelor’s degree in science or engineering or the equivalent, see here for the complicated details) and passing the registration examination, which is sometimes called “the patent bar exam.”  The examination consists of 100 multiple choice questions, mainly derived from the Manual of Patent Examining Procedure, the rulebook for patent examiners.  The pass rate for the exam is considerably lower than most state bar exams.

Notably, admission to practice before the PTO does not require a law degree or a license to practice law.  Non-lawyers who pass the registration exam become patent agents and lawyers who do so become patent attorneys.  Both have the same abilities to practice before the PTO, but only a patent attorney can handle “everything else.”  If a patent agent later becomes an attorney, he or she can pay a fee to have their registration changed to say “patent attorney,” but there is no functional difference.

II. So What’s the Problem?

Actually, there isn’t necessarily a problem.  Reed did say “patents,” not “patent applications,” so it could be that he’s talking about something like negotiating licenses or handling an infringement suit.  While patent attorneys often deal with the full spectrum of patent law, it is not uncommon for patent litigators or patent license specialists not to be patent attorneys.  So Reed could have a separate firm handle the work of obtaining patents (aka “patent prosecution”) and leave licensing and litigation to Nelson and Murdock.  Or Reed could even represent himself before the PTO, which is always an option even for someone who is not a patent attorney or agent, albeit not one that I would recommend, even for someone as smart as Reed.

Alternatively, Nelson or Murdock could be a patent attorney.  I couldn’t find any information on their undergraduate degrees, so it’s possible that one or both of them have the required technical background.  Statistically this is unlikely, since only about 7% of attorneys have a science or engineering degree.  R. Kim Craft and Joe G. Baker, Do Economists Make Better Lawyers? Undergraduate Degree Field and Lawyer Earnings, 34 J. of Econ. Educ. 263, 271 (2003).  Still, it’s possible, and Murdock clearly has an aptitude for mechanical engineering, since his billy club is chock full of clever gadgets of his own design.

III. Conclusion

It’s a pretty minor issue, but I couldn’t pass up an opportunity to talk about this particular quirk of patent law.  I’ll be taking a look at the other books in the Loeb & Sale series in the future, but until then I recommend checking out Daredevil: Yellow for yourself!

The Avengers: Declarations of War

Our last post, discussing the issue of compensation for the property damage that resulted from the battle over Midtown Manhattan, delved into whether or not the battle counts as an “act of war” or even just a “war” or whether it counts as “terrorism” or something else. This is as good a time as any to discuss what it means to be “at war” and what “war” means as a legal concept. Continue reading

The Avengers: Who’s Gonna Pay for That?

As some have already noted, the damage done to Midtown Manhattan in The Avengers could easily top $160 billion, all told (here’s the original source of that estimate).

That’s a lot of money. By comparison, as the link notes, the total impact of the September 11th attacks was about $83 billion and Hurricane Katrina cost about $90 billion. This is about as much as the two of those put together.

So… who’s gonna pay for all that?

Well, we talked about this subject generally back in December 2010, and the analysis has changed little since then. But The Avengers gives us a chance to apply those general principles to a particular set of facts. Continue reading

Announcing The Law of Superheroes!

We are excited to announce The Law of Superheroes, a new book inspired by Law and the Multiverse!  The book features thirteen chapters covering a wide range of legal topics, including new and updated material from the blog as well as dozens of comic book illustrations.  The Law of Superheroes will be published on October 11, 2012 by Gotham Books, a division of Penguin.  You can pre-order copies from any of these booksellers:

Amazon

Barnes & Noble

Books-A-Million

Indiebound

iTunes iBookstore

Law and the Multiverse CLE

For the attorneys in the audience: Thomson West has invited us back to give two new CLE webcasts!  On May 23rd we will be presenting a program on constitutional law issues.  Topics include warrantless GPS tracking, warrantless use of advanced surveillance equipment, mask laws and the First Amendment, civil rights issues, and double jeopardy.  And on May 30th there will be a program on real-world superheroes and criminal law.  Be sure to use promo code MULTIVERSE30 for a 30% discount!

Our programs from last year on ethics and torts are also still available online.