Monthly Archives: October 2012

Law and the Multiverse Halloween Special

This month’s Subculture for the Cultured column is also our Halloween Special, inspired by this note from Jamas:

In Treehouse of Horror IV, the segment ‘The Devil and Homer Simpson‘ has Homer give his soul to the Devil in return for a doughnut. After finally eating the doughnut, the Devil turns up to get the soul, but Marge convinces him to have a trial. At the trial, Marge shows a prior note by Homer giving his soul to Marge, and thus he doesn’t own it to sell to the Devil…

Would Marge’s plan work?  Would the Devil go back to hell empty-handed?  Read and find out!

Reddit: AMA

James and Ryan will be hosting a Reddit AMA starting at 9:00 AM, EST today, October 31. We hope you drop by!

Revere: Revolution in Silver II

Earlier, we looked at some of the general legal and historical issues with Revere: Revolution in Silver. Today, we’re looking at one particular legal problem: breach of the promise to marry. In the story, a young woman finds herself arranged to be married to a young man. The match was set up by their respective families, but the man is far more interested in the marriage than the woman. After a traumatic incident, the young woman refuses to go through with it. The young man is understandably upset, but his parents are aghast. They had been counting on the woman’s family business connections, which would have stayed with her after the marriage. The man remarks that, as she’s now broken her promise to marry, he can recover her business as damages.

Is that really how it works? Previously, we’ve looked at void and voidable marriages, and interspecies marriage, but now we’re going to look specifically at the tort of breach of promise. Continue reading

Law and the Goonies

A while back we got a question from JD, who asked:

[In The Goonies], would they really have been able to keep the jewels Mikey got off the pirate ship? Or would the State have asserted ownership of the discovered “historical relics”?

If you haven’t seen The Goonies, you should.  It’s a classic 80s movie, and although it was directed by Richard Donner, the story was written by Stephen Spielberg, and the movie has his fingerprints all over it.  The Blu-Ray edition came out a couple of years ago, and we can recommend it.  For more nostalgia, check out the cast reunion video that Empire magazine put together.

Anyway, back to the question.  We’ve written about lost property before, including treasure troves.  In this case the issue is complicated by two facts: 1) the movie is set in Oregon, so we have to apply Oregon law and 2) the treasure is on a boat.

I. Oregon Law and Lost Property

As you might guess for a state high up on the west coast, there aren’t too many Oregon cases dealing with treasure (just what was a 17th century pirate doing in northwest Oregon anyway?).  But there are enough to get some basic definitions.

In Oregon, a treasure trove is the property of the finder and consists of “[m]oney or coin, gold, silver, plate, or bullion found hidden in the earth or other private place, the owner thereof being unknown.”  Bergeron v. Aero Sales, Inc., 134 P.3d 964, 969 (Or. Ct. App. 2006) (quoting Jackson v. Steinberg, 186 Or. 129 (1948)). “The treasure must have been hidden or concealed so long as to indicate that its owner, in all probability, is dead or unknown.”  Jackson v. Steinberg, 186 Or. at 140.

Notably, “the ownership or possession of the land upon which [treasure trove or abandoned property] was found is immaterial.”  Hill v. Schrunk, 292 P.2d 141, 142 (Or. 1956).  “It seems to be the principle respecting treasure trove, owing to its peculiar nature of being coin, that the present property is in the finder, as against every one but the true owner, provided that the true owner is unknown, and it matters not where or when the same is found, so that it is secreted in the earth or other private place.” Jackson at 144 (quoting Ferguson v. Ray, 44 Or. 557 (1904)).

One-Eyed Willie’s ship (and thus the treasure) was hidden in an underground lagoon, which seems to count as both hidden in the earth and a private place.  One-Eyed Willie is obviously dead, and I don’t recall any descendants being discussed in the movie, certainly not any known ones.  And it doesn’t matter that the Goonies found the treasure on somebody else’s land.  So the Goonies may have a legitimate claim to the jewels as part of a treasure trove.

II. Admiralty Law

Here’s where it gets sticky.  If the treasure is considered a treasure trove, then the answer is easy enough.  But the treasure wasn’t buried underground as such; it was on a boat floating on an underground lake.  This means it might actually be a salvage operation, and salvage and treasure trove are mutually exclusive.  Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F. Supp. 507, 525 (S.D. Fla. 1978), aff’d, 621 F.2d 1340 (5th Cir. 1980), aff’d in part, rev’d in part on other grounds, 458 U.S. 670, (1982).  So what is salvage, exactly?

“Salvage” is the compensation or reward allowed to persons by whose voluntary assistance to a ship at sea or its cargo, or both, have been saved in whole or in part from impending sea peril or by which such property has been recovered from actual peril or loss, as in cases of shipwreck, dereliction, or recapture.

Am. Jur. 2d Salvage § 1.  Since the ship was still more-or-less seaworthy, this would seem to be a case of a derelict ship rather than a shipwreck.  If the Goonies had actually engaged in a salvage operation then they would not have any right to the ship or its contents but rather only to receive a salvage award.  That means no fair keeping the jewels, but the salvage award would be more than enough to compensate.  The problem is that the boat went sailing off into the ocean, and getting a salvage award can take years.  That’s cold comfort when the evil Astoria Country Club is breathing down your neck.

Hope is not yet lost, however.  Salvage only applies to ships that have not been abandoned by their owners.  Columbus–America Discovery v. Atlantic Mut. Ins., 974 F.2d 450, 459 (4th Cir.1992).  When a ship has been abandoned, then a different law applies, the law of finds.

Under the law of finds, the finder gets the ship and its contents, not a salvage award.  Helpfully for this case, abandonment can be inferred when neither the owner nor their heirs have attempted to reclaim the vessel for a considerable length of time.  See, e.g., Marex Intern., Inc. v. Unidentified, Wrecked and Abandoned Vessel, 952 F.Supp. 825, 828-29 (S.D. Ga.  1997) (holding that a vessel sunk in 1840 was properly considered abandoned).  Willie’s ship, The Inferno, is certainly old enough to qualify as abandoned, and again there are no signs of any heirs.  Under the law of finds, the Goonies could sue to establish title to the ship and its contents.  If no heirs showed up to contest it, it would be theirs.

Even under the law of finds there is a catch, however.  The Inferno may be an historic shipwreck.  If it is, then the court could impose an archaeological duty of care before handing over title.  Marex, 952 F.Supp. at 829.  The Goonies would also have to show some reasonable prospect of success at recovering the ship.  Given the Goonies’ fairly cavalier approach to treasure hunting (and the fact that the movie ends with the ship floating out to sea), bringing in some professional archaeologists and recovery experts might not be a bad idea.

III. Conclusion

Whether the law of lost property or admiralty applies, the Goonies just might have a good claim to the treasure.  The law of lost property would probably treat them better, however.

The Law of Superheroes Reviews

Reviews of The Law of Superheroes are coming in and they’re pretty great!

Popehat: “The Law of Superheroes is both entertaining and informative. People who aren’t lawyers or law-geeks will learn something about the law, and lawyers and law-geeks will be thoroughly entertained at the application of familiar principles to comic extravaganzas.”

Shelf Awareness: “superpowered geekery of epically entertaining proportions”

Mommy’s Busy…Go Ask Daddy!: “I’m far from a lawyer, but these guys bring up such a unique and fresh perspective on superheroes, that I’m instantly sucked in. … a highly entertaining read. Not only will you actually learn some legal jargon and get a better grasp on the legal system as a whole, but these guys legitimately try to answer all of these hypothetical questions.”

Amazon Reviews: “The Law of Superheroes is a fun, quirky book with great crossover potential. The authors approach both topics from an introductory perspective, so that the reader need not have much preexisting knowledge of either to follow along. A must for anyone who enjoys pop culture analysis, Smart Pop style.”

LibraryThing: “a great way to explain real law in a fun and entertaining manner.”

GoodReads: “I came out of this book with a better understanding of the law, which surprised and delighted me, honestly. They even say that they wanted to make the law a bit more interesting, and they succeeded.”

Geek Speak Magazine

Ryan and I were interviewed by Geek Speak Magazine.  It’s one of the longer interviews we’ve done, and we had a lot of fun with it.  Check it out!

Revere: Revolution in Silver

Revere: Revolution in Silver is another American Revolution period piece, this one by Ed Lavallee and Grant Bond, published by Archaia. We do like our indie publishers here at Law and the Multiverse. The premise is that since Paul Revere was a silversmith, he must have also been a werewolf hunter! Because: why not?

This one is even more fantastical than Sons of Liberty, which we discussed last week. No surprise there. But either as a result or simply because the authors care more about awesomeness than historical accuracy, this one’s a bit less strictly realistic than Sons of Liberty, which is saying quite a bit. Continue reading

Marketplace Interview

Ryan and I were interviewed on Marketplace about superheroes and their personal finances!  You can listen to it online.  And if you’re coming here from Marketplace, you can buy our book The Law of Superheroes at your local bookstore or order a copy online:

Amazon
Barnes & Noble
Books-A-Million
Indiebound
iTunes iBookstore

The Sons of Liberty

The Sons of Liberty, Book I is the first installment in Alexander and Joseph Lagos’ 2010 graphic novel series of the same name. Book II came out last year, but I haven’t gotten to that one yet. The premise is that two slave boys in colonial America acquire superpowers via experiments into electricity performed on them after they escape from their master, a Virginia tobacco farmer. The boys are Graham and Brody, and they come under the tutelage of fictionalized Benjamins Lay and Franklin in 1760.

The book is unusual for several reasons. There aren’t a ton of graphic novels set in the Revolutionary period, nor does Random House put out all that many graphic novels, for that matter. But it provides a great opportunity to take a quick look at a rather unpleasant chapter in American legal history: laws having to do with slavery. Continue reading

Daredevil: Redemption

Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:

Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?

There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones.  There are a few minor spoilers ahead, but nothing too serious.  For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama.  Almost all of the action occurs in that small town,  Daredevil makes only a few appearances, and there are no other superheroes or supervillains.  The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama.  It’s a pretty good read, and we recommend picking up a copy.

I. Pro Hac Vice

You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama.  Isn’t he from New York?”  It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there.  However, in some cases, an attorney may be given special permission by a court to practice out of state.  This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.

The way this is described in the comic is quite accurate.  The local attorney says:

Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice.  He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias.  Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.

That’s pretty much how it works in the real world.  Local counsel can do more than just sign papers and sit in court, though.  Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff.  But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.

As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is.  If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice.  It wouldn’t matter that he would be advising a client about Alabama law, either.  Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.

II. The Guilty Client and the Not Guilty Plea

As Murdock often does, he asks his (prospective) client whether he committed the crime.  The client says, “Let’s say I am.  You have to defend me even if I say I killed the kid, right?”  Murdock responds:

Wrong.  My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty.  That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.

There are a couple of issues here.  First the good news: Murdock is correct that the confession would be confidential.  Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).

As you probably know, in the United States criminal defendants are presumed innocent until proven guilty.  The plea of “not guilty” is necessary in order to force the state to prove its case.  It’s not a claim of innocence made under oath.  Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example.  As Robert F. Cochran, Jr. explained:

But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.

“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005).  Cochran describes several rationales for this right to lie, including one by Jack Sammons:

[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.

In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty.  Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty.  And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else.  So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.

III. Perjury

Now, what a lawyer can’t do is knowingly assist a client in committing perjury.  This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand.  But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie.  There are a few approaches here:

1. The attorney can withdraw.  This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.

2. The attorney can simply invite the client to give an open-ended narrative.  For example: “Tell us what you remember from that night.”  Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand.  This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.

3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury.  Obviously this is not a very satisfying approach for the attorney or the client.

4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no.   Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either.  This is a controversial position, to say the least.  See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).  It is also universally rejected by ethical codes in the US, but I include it for completeness.

IV. Conclusion

The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses.  The one major error is irrelevant to the plot anyway.  It’s always nice to see a book that gets the legal details right and also tells a good story.