Monthly Archives: July 2013

The Man of Steel Confesses

I know I said the post on Lois Lane’s employment contract would probably be our last post on Man of Steel, but we got a great question from Neal that I couldn’t resist writing up.  Neal—who is a rabbi in New York—writes:

You may remember that Clark Kent goes into a church and confesses to the priest (let’s assume he’s a Catholic priest, for the sake of argument, though to be clear different religions handle “confession” and counseling relationships differently) that he’s the guy everybody is looking for. Now, in NY, that priest can’t be compelled to testify or reveal information obtained while performing the duties of a clergy- penitent or clergy-congregant relationship (as I broadly understand it) but there ARE mandated reporting laws, e.g. regarding child and elder abuse.

So could the Feds or the state government have compelled the priest to testify given that:

1) An alien might not be presumed to be a member of the church, especially if he just showed up and had no prior relationship to this denomination or its clergy,

and

2) the stakes are just so damn high, like planetary destruction. If there is a mandated reporting law for child abuse- and to be clear I am not 100 percent sure even that overrides the legal protection of the clergy relationship in all instances- wouldn’t it apply on a vastly larger scale with something like this?

These questions raise several issues related to the confessional privilege.

I. The Confessional Privilege in Kansas

At common law there was little or no legal protection for statements made to a member of the clergy in confession or otherwise while seeking religious advice or counsel.  Instead, the privilege is largely derived from statutes.  Generally speaking it is weaker than, for example, the attorney-client privilege, but in some states the confessional privilege can be pretty broad.

I believe that the confessional scene takes place in Smallville, which is located in Kansas.  In Kansas the privilege is defined in the Kansas Rules of Evidence, specifically K.S.A. 60-429(b):

A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

So in other words, Clark (if he’s present) or the priest (if Clark is absent) could claim the privilege (become the claimant) in order to prevent the priest from disclosing what Clark told the priest, or in order to prevent Clark from disclosing the same.

Now, there are a lot of specialized terms in that definition, including “penitent” and “penitential communication” (we’ll assume the priest is a regular or duly ordained minister).  Those terms are defined in 60-429(a):

“penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct

“penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.

So right off the bat we can see the answer to one of the issues: there’s no requirement that Clark have been a member of the church in question or otherwise have had a pre-existing confessional relationship with the priest.  As long as he “recognizes the existence and the authority of God and … seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging [his] moral obligations”, that’s sufficient.  And honestly I’m not too sure about the “recognizes the existence and the authority of God” part, but it doesn’t appear to have been put to the First Amendment test, at least in Kansas.

In this case, Clark is at least seeking advice or assistance in determining his moral obligations (i.e. whether to reveal himself as Superman and try to do good in the world with his powers).  And it appears that he intended the communication to be confidential.  He and the priest were alone in the church, and I don’t recall him telling the priest it was okay to tell anyone else.  There was a strong implication that it was a confidential conversation, and that Clark told the priest what he did precisely because he believed it was confidential.

II. Any Exceptions?

The Kansas statute, like many such statutes, does not contain much in the way of exceptions.  It sets a relatively high bar to accessing the privilege in the first place, but once it’s reached, that’s pretty much it.  Many states do provide an exception for child abuse reporting, particularly if members of the clergy are mandatory reporters, but the issue does not appear to have come up in Kansas.  Certainly there is no broad exception for the public good or public safety.  And that makes a certain amount of policy sense.  The confessional privilege would be largely pointless if those confessing the possibility of endangering themselves or others (e.g. by committing a violent crime) were not protected by it.

III. But Wait, What About the Feds?

It’s all well and good that the privilege would apply in state court in Kansas, but what about federal court?  After all, it’s not exactly the local sheriff that’s looking for Clark.  Would the priest still be able to keep quiet if there was some kind of federal proceeding?

Maybe, maybe not.  There is no federal confessional privilege statute.  One was proposed as part of the Federal Rules of Evidence, but it was not approved by Congress.  Over the years a federal common law privilege has developed, and it appears to be recognized in Kansas. U.S. v. Dillard, 2013 WL 875230 (D.Kan. Mar. 7, 2013) (“Plaintiff does not take issue in this case with the general existence of the [confessional] privilege. Neither does this Court.”).

I have yet to see a federal case that describes the contours of the privilege clearly, so I will take this summary from a treatise on the subject:

The communication by a spiritual communicant is privileged if it is made to an ordained or otherwise duly accredited functionary of a religious organization in his capacity as such. … The communication must have been made for the purpose of obtaining spiritual aid or religious or other counsel, advice, solace, absolution, or ministration. It must also have been made in confidence.

Paul F. Rothstein & Susan W. Crump, Federal Testimonial Privileges § 10:3.

In this case, the federal privilege would also appear to apply.

IV. Conclusion

The state law confessional privilege probably applied in this case and there probably wasn’t an exception.  The same is likely true of the federal privilege, bearing in mind that it exists on somewhat shaky ground, having never been formally approved by the Supreme Court or even (as far as I can tell) the 10th Circuit, in which Kansas is located.

 

Lawyer2Lawyer Podcast

[Spoiler Alert for The Dark Knight Rises.  If you haven’t seen it yet, you should.]

Last month I was invited onto Lawyer2Lawyer to discuss legal issues raised by the end of The Dark Knight Rises, as originally discussed in this guest post by Mike Lee. Lawyer2Lawyer is a podcast that analyzes contemporary news topics from a legal perspective on the Legal Talk Network. Normally they cover serious news stories, but this time the question was “is Batman legally dead?”  I was joined on the show by Michael Baroni, General Counsel at Palace Entertainment and a long-time Batman fan.

Listen here: Is Batman Legally Dead?

The Avengers and Campaign Finance

Thanks to Adam for alerting us to this article at The Daily Caller comparing the effects of campaign finance laws on Bruce Banner and Tony Stark.  The article is an opinion piece and definitely has an editorial slant that we at Law and the Multiverse express no opinion of our own about, but the legal analysis is great.  We only wish we’d thought of it ourselves, actually.

Comic-Con Panel Tomorrow!

Not Guilty Due to Zombification? Law and Forensic Psychiatry in a Zombie Apocalypse is at Comic-Con tomorrow, Thursday July 18th from 8pm-9:30pm in Room 7AB.  So far 610 people have marked themselves down as attending on the scheduling website, so it looks like we’ll have a pretty good crowd.  We hope to see you all there!

Superman and the Duty to Rescue on Bloomberg Law

Bloomberg Law has produced a short video about my piece on Wired.com about Superman and the duty to rescue in Man of Steel.  Check it out!

Lois Lane’s Employment Contract

This will probably be our last post on Man of Steel.  No spoiler warning on this one, as I can set up the issue without giving anything of consequence away.

In Man of Steel, Lois Lane works as a reporter for the Daily Planet (no surprise there).  At one point in the movie, she has a disagreement with her boss, Perry White, over whether to run a certain story, and she threatens to quit.  White tells her that she can’t do that because she’s under contract, and Lois concedes the argument.

Wait, what?

I. Employment Contracts

How can Lane’s employment contract prevent her from quitting her job?  Surely the Planet can’t literally force her to work.  Doesn’t the Thirteenth Amendment have something to say about that?

And it does.  The Planet can’t force Lane to work, and a court can’t order her to work if she breaches her employment contract.  But that doesn’t mean an employment contract is completely toothless from the employer’s point of view.  There are two major techniques that the Planet might have used when drafting the contract to make it in Lane’s best interest to keep working for the Planet rather than quit: damages and a non-compete agreement.

II. Damages

Ordinarily in a breach of employment contract case it’s the employee who seeks damages from the employer, typically arguing that the employer owes them whatever they were due under the contract in the form of salary or other compensation.  Of course, that only works if it’s the employer that broke the contract.  If it’s the employee that reneged on the deal, then things could go the other way.

In cases where the employee is the breaching party, employers don’t often sue for damages because a) employees usually don’t have a lot of money and b) it’s difficult to say how much the employee’s work would have been worth.  This is different from the reverse situation, where the employer typically has deep pockets and it’s very clear what the employee was owed in terms of salary.

One possible solution to this problem is a liquidated damages clause, which says something like “if Lane breaches the contract then she must pay the Planet $X.”  Basically it’s an upfront agreement regarding the damages in the event of a breach of contract.  There are some limits and restrictions on such clauses, but they are, in principle, allowed in employment contracts as long as they are reasonable and not punitive.  See, e.g., Kozlik v. Emelco, Inc., 240 Neb. 525 (1992).

Faced with the prospect of having to pay the Planet the approximate value of her services to them, Lane would probably conclude that it was better to keep working.

III. Non-Compete Agreements

As the name suggests, these clauses bar the employee from competing with the employer after they quit working for the employer.  Usually this means that the employee can’t work for a competitor or in the same industry for a certain period of time, typically no more than a few years.  The agreement may also be limited geographically (e.g. only apply to the city where the employee was working).

Some states strongly disfavor non-compete agreements, whereas others are generally okay with them as long as they are reasonably narrow in scope.  We don’t know where Metropolis is, but it’s likely that it’s in a state that accepts non-compete agreements.  If Lois Lane was subject to a non-compete, then quitting the Planet would mean quitting being a journalist, at least in the Metropolis area.  That’s a powerful incentive not to quit.

IV. Conclusion

Although the Planet might not have literally been able to force Lane to keep working, her employment contract may have effectively done so anyway.

Coverage Opinions

Today’s post is actually another bit of a plug, though it does involve superheroes. I recently did an interview with Randy Maniloff of counsel at White and Williams in Philadelphia, who also publishes Coverage Opinions, a newsletter about insurance coverage issues targeted at coverage counsel. In the interview, we discussed some of the coverage issues pertaining to bat guano, Spider-Man’s webs, and magical perils. The piece is in Volume 2, Issue 14.

The newsletter is actually a pretty informative publication for those who follow developments in coverage law, and but it’s seasoned with enough levity to make for enjoyable reading for the broader legal audience. Non-attorneys and non-insurance professionals will likely find it a bit technical, but if you’re looking at how insurance law really works, it might actually a fairly accessible jumping-off point for a more general audience.

In any case, if you were wondering how Peter Parker might get in even more trouble, angry property owners facing the denial of insurance claims is plausible. Give it a look!

And Now a Shameless Plug

Pardon the slightly off-topic post (I promise we’ll be back with more superheroes and supervillains soon), but an article I co-wrote with F. Scott Kieff was just published in the Emory Law Journal: James E. Daily & F. Scott Kieff, Anything Under the Sun Made by Humans: Patent Law Doctrines as Endogenous Institutions for Commercializing Innovation, 62 Emory L.J. 967 (2013).  You can find the full article for free here.  Scott and I wrote the article as part of our work with the Stanford University Hoover Institution’s Project on Commercializing Innovation.  To give you an idea of what it’s about, here’s the abstract:

This Essay outlines a comparative institutional analysis among various doctrines in patent law to show how they can have different impacts on the way inventions are commercialized. It builds on a prior body of work about the positive role that property rights in patents can play in commercializing innovation to show how recent shifts in approaches to the particular legal doctrine known as patentable subject matter can be expected to have different effects on the commercialization of inventions than prior approaches. It concludes that, to the extent society wants to increase the overall rate of invention commercialization and increase overall competition as reflected in diversity in firm size among participants in the markets for commercializing innovation, society should consider reversing course on the law of patentable subject matter and return to an approach that is closer to the “anything under the sun made by man” view that was championed by the Supreme Court in the 1980s and by Congress through most of the second half of the twentieth century, updating only its gender biased language.

As you might guess, it’s a little denser reading than our usual material, but I thought some of our readers might be interested.

Comics University at Star Clipper

My local comic book store, Star Clipper, is putting on a series of free lectures and movie screenings this summer called Comics University.  Attendees can earn coupons, gift cards, and other prizes, and the course list looks like a lot of fun—and not just because I’m teaching a class on The Law of Superheroes on Wednesday, July 31st.  Like the other Comics U classes, it will run from 7pm to 9pm.  If you’re in the St. Louis area I hope to see you there!

(NB: There will always be standing room, but to reserve a seat for a class, send an email to comicsu@starclipper.com the day after a class to register for the following class.  For example, to register for The Law of Superheroes, send an email on Thursday, July 25th.)

World War Z

So the World War Z movie came out last weekend. It’s got Brad Pitt as the main character in the Max Brooks novel–the second part of the so-called “Brooksverse“–which is kind of odd, as the novel doesn’t have a main character. But whatever. It’s about the zombie apocalypse and the end of the world. No spoilers there, I’m sure.

We generally try to avoid discussing the legal implications of things that happen in a legal vacuum, and the zombie apocalypse is one of the most stereotypical of such vacuums. But on a more granular level, what we’ve got here is an account of the gradual descent into said vacuum. Society may ultimately collapse, or it may not, but it hasn’t done so yet, and it’s still operating on at least the vestiges of institutional inertia. That would necessarily include some version of the current legal system. So it does make sense for us to take a look at how that descent is portrayed. Specifically–again, no real spoilers here–the organization of a UN-led fleet in the North Atlantic. Continue reading