Monthly Archives: June 2012

The Uniques I: Registration

We discussed The Uniques on Monday, giving a sort of introduction to the authors, the estimable Comfort Love and Adam Withers, and the story itself. Very briefly, Comfort and Adam are awesome, and The Uniques is an unfolding story, still in its early stages, about a world where superheroes aren’t just a sort of bonus pack to reality that somehow doesn’t affect anything, but a vital, hugely important part of modern history. Which might be the most ambitious and fun thing that we’ve seen anyone try to do. So you should read it.

This week, we’re going to start looking at the way The Uniques deals with law and the legal system. And where better to start than with what has been the single most debated issue in any superhero setting: registration. Continue reading

The Uniques: Overview

Last month, I (Ryan) had the privilege of presenting at Summit City Comic Con. While there, I had the good fortune to meet Comfort Love and Adam Withers, the married-couple creators of The Uniques. Comfort and Adam are independent comic creators, and by “independent,” I don’t mean “publishing for someone other than Marvel or DC,” I mean “promoting their work at the con circuit and self-publishing with print on demand.” Comics are their full-time job, and if you’ve run across them at a con, odds are you’ve seen their delightful presentation, “Creating Your Comic From Concept to Publication.” Turns out self-publishing as a full-time job, which is what they do, is at least as much “running a small business” as it is drawing and writing.

Their main work thus far is, as mentioned, The Uniques. They’ve got nine issues out so far, available individually in either hard copy or a variety of digital formats, in trade paperbacks, or my preferred edition, Vol. I of the omnibus, which has all nine issues. You have to buy directly from them, which in a sense is surprising, because if the big guys were writing stories this good they might not be seeing the sales slump they’ve complained of for the past decade or so.

And make no mistake: The Uniques is good. I had dinner with Comfort and Adam after the con, and they explained it this way: The Uniques is an exploration of a world in which superheroes are real in the way that the Marvel Civil War should have been but wasn’t. A lot of comics are basically magical realism. Fantastic stuff happens, but the world at large just sort of goes on the way it always has. This despite the fact that the mere existence of something like telepathy would have enormous implications for daily life. The Uniques is set in a world where those implications are real. Humanity is now made up of “uniques,” people with supernormal powers, and “typics,” people without them. The background history is still being revealed, but thus far we know that the first uniques showed up in 1939. They fought in World War II on both sides, but the outcome of the war was largely the same. Virtue, the first unique to appear, delivered the bombs over Hiroshima and Nagasaki, for example, but the bombs were still delivered. The rest of the century unfolded more-or-less as we know it–Vietnam happened, with uniques again participating on both sides–but the presence of uniques added a level of tension to the Cold War that was lacking in the history we know. The Soviet Union apparently didn’t dissolve in the late 1980s, and things were coming to a head in 1993 when a team of uniques from both sides of the conflict joined forces to put an end to the Cold War. How hasn’t been revealed yet, but there are hints that this is going to be central to the larger plot. Regardless, uniques are a recognized part of society, and as the story unfolds, we’re seeing how legal and administrative structures have evolved to deal with them.

Only we’re seeing it without a writer’s revolt that led to Iron Man acting like a complete jerk for about two years, and Mr. Fantastic finally abandoning his normal uselessness to create a seriously evil system of incarceration. Heck, we’re seeing a society that actually makes use of uniques and the technology that goes along with them. But more than that, the pro-reg forces in Civil War were supposed to have the better part of the argument. Unfortunately, any message, pro- or anti-reg, was completely lost in the ensuing soap opera, inconsistent conception of the core laws at issue, and what seem to have been political disagreements amongst the writing staff. Remember, Civil War came out at the height of the Second Gulf War, and the media was still full of stories debating the merits of the war and the US’s continued detention of alleged “enemy combatants” in Guantanamo Bay. Some of those issues continue to be pressing, but there may have been enough time between then and now to permit a more detached, less immediately political discussion about related issues. The world of The Uniques assumes that there is some compromise to be made between security and liberty, just as a practical matter, and some of the characters are significantly motivated by their attempts to figure out where they fit in that compromise. Marvel, on the other hand, seems to have been surprised by the idea that any kind of compromise is even warranted, much less appropriate, and the whole thing is somewhere between a dork age, canon discontinuity, and downright negative continuity.

So over the next few weeks, we’re going to be taking a look at the Uniques, seeing how Comfort and Adam are creating what may fairly be called the most robust venture into a world that takes superheroes and supervillians both seriously and in stride.

Damage Control: Suits Against Foreign Governments

This is the first post in a series on Damage Control, a limited-run series of comics  from Marvel about the eponymous construction company.  The series answers the question “who cleans up after the heroes and villains have finished fighting?” As you might imagine, it’s rife with legal issues.  Unfortunately, the first three volumes have not been collected as trade paperbacks, but you can start with the first issue here.  Today’s post actually comes from the second issue, which has a hilarious cover.

I. The Setup

The plot of the issue is pretty straightforward.  Damage Control handles reconstruction and repairs for villains as well as heroes, and Dr. Doom is a client. Unfortunately, his account is seriously in arrears, and so Albert Clearly, Damage Control’s comptroller, goes to the Latverian embassy in New York to collect. Once he arrives he is greeted by Count Gunter Flounder, who indicates that not only will Doom discontinue the use of Damage Control’s services but that they do not intend to pay the outstanding bill.  As such, “your only option would seem to be trying to sue a foreign government.”

As it happens, Flounder was apparently embezzling from Doom, not to mention hiding the fact that one of his buildings had been damaged. Doom fires Flounder (“I am nothing if not merciful”) and settles the account with a personal check.  But what if he hadn’t?  Could Damage Control have sued Latveria, assuming that their contract was with the country rather than Doom personally?

II. Suits Against Foreign Governments

Suing a foreign government in a United States court is possible, but it is difficult. The Foreign Sovereign Immunities Act establishes that foreign governments are immune from suit in US state and federal courts unless the claim falls within one of the exceptions in the Act.  The FSIA provides the sole basis for suing a foreign government in a US court.  See, e.g., Garb v. Republic of Poland, 440 F.3d 579, 581 (2d Cir. 2006).  So unless an FSIA exception applies, Damage Control is out of luck.  So what are those exceptions?

In general, the FSIA provides immunity for the public acts of foreign states but not for their private acts. The exceptions are listed in 28 U.S.C. §§ 1605, 1605A, but we are most interested in the commercial activity exception, since this is ultimately about a contract for services.

The first step is to determine whether the commercial activity was done with the  authority of the foreign state.  Some circuit courts have held that actual authority (as opposed to apparent authority) is required. See, e.g., Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307 (9th Cir. 1997).  The Second Circuit, which includes  New York, has held that apparent authority may be sufficient. First Fidelity Bank, N.A. v. Government of Antigua & Barbuda–-Permanent Mission, 877 F.2d 189 (2d Cir. 1989).  Since Dr. Doom himself, the absolute monarch of Latveria, was apparently involved, actual authority seems a given, so the point is kind of moot.

The next step is to determine whether the case deals with commercial activity. In the words of the statute, whether “the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2).  The act further defines commercial activity as “[E]ither a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.”  28 U.S.C. § 1603(d).

The general rule is that an activity is commercial “when a foreign government acts, not as regulator of a market, but in the manner of a private player within it.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992).  With regard to contracts specifically,  “[T]he United States will be found to have had a substantial contact with that activity if substantial contractual negotiations occurred here or if substantial aspects of the contract were to be performed here.” Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094, 1113 (S.D. N.Y. 1982); see also Transcor Astra Group S.A. v. Petroleo Brasileiro S.A.-Petrobras, 409 Fed. Appx. 787 (5th Cir. 2011).

In this case, Latveria contracted with a US company for commercial services to be provided within the United States, and I suspect that the contract was formed in the United States as well, or at least at the Latverian embassy in the United States. On that basis, the commercial activity exception would seem to apply, and Damage Control could have sued Latveria for breach of contract.

As an interesting side note, there would not be a jury trial.  Cases under the FSIA are virtually always bench trials.  The courts have held that a suit under the FSIA is not a suit at common law for Seventh Amendment purposes, and so there is no right to a jury trial. See, e.g. Kraikeman v. Sabena Belgian World Airlines, 674 F. Supp. 136 (S.D. N.Y. 1987).  This is because suits against foreign states were not available at common law at the time of the Seventh Amendment’s ratification in 1791.

I said FSIA cases are ‘virtually’ always bench trials because there appears to have been at least one exception, Martinelli v. Djakarta Lloyd P. N., 106 Misc. 2d 429 (N.Y. City Civ. Ct. 1980).  As in that case a foreign state can be sued in state court, though the FSIA gives foreign states the power to demand removal to federal court, where the case would be tried before a judge.  If a foreign state voluntarily stays in state court, it could be subject to a jury trial.

III. Conclusion

So although it might have been a difficult case (and an even more difficult collection process even if they won), Damage Control could probably have sued Latveria for breach of contract.  Damage Control, Inc. v. Kingdom of Latveria has a nice ring to it, don’t you think?

Any Military Lawyers in the House?

We recently got a great question from a reader about The Avengers that involves the law of war, the UCMJ, and illegal orders.  That’s pretty far afield for us, and we don’t have a ton of research sources in that area.  Are there any military lawyers out there who might like to give us a hand with a post on it?  If so, send me an email!