Author Archives: James Daily

She-Hulk: Was Wong in the Wrong?

(This guest post was written by Scott Maravilla. Thanks Scott! NB: This post includes minor spoilers for She-Hulk episode 3! And in case you’re wondering, I have been keeping up with the series, and I give it overall good marks for legal accuracy so far. The mistrial was exactly what would have happened, and large law firm partner’s Holden Holliway’s response to Jen’s request to pick her own assistant was pitch-perfect.)

In the She-Hulk: Attorney-at-Law episode “The People v. Emil Blonsky” (S1:E3), after testifying on behalf of Emil Blonsky at his parole hearing, Wong is called out by the chair of the California Parole Board for “admitt[ing] to facilitating a prisoner escape which is a crime.” At which Wong quickly escapes through one of his magic portals.  The chair is referring to California Penal Code 4550 which makes it a criminal offense punishable by imprisonment up to four years to “rescue any prisoner from any prison.”  The case appears cut and dry.  Wong used his portal power to break The Abomination out of his cell for an underground fight club tournament (See Shang-Chi and the Legend of the Ten Rings). 

            Not so fast, California recognizes necessity as an affirmative defense to helping someone, here The Abomination, break out of jail.  Necessity is where the conduct in question is undertaken to prevent a greater harm.  In the context of a prison break, while viable, it “is extremely limited in its application . . . because of the rule that upon attaining a position of safety from the immediate threat, the prisoner must promptly report to the proper authorities.”  People v. Lovercamp.  In Lovercamp, two women prisoners who were convicted of attempting to escape offered as their defense that they were being threatened by a group of fellow inmates.  The threats were described as “f**k or fight” which resulted in a fight followed by more threats.  Prison officials did nothing for the women’s protection.  As a consequence, they attempted to escape because they “felt they had no choice but to leave the institution in order to save themselves.”  On appeal, the court remanded the case back to trial to consider this defense. 

            While this case illustrates the defense, it is only from the point of view of the prisoner as opposed to an outside third party like Wong.  But, with superhuman law, comes superhuman defenses.  Let’s examine some of the key elements of necessity in the context of the work of the Sorcerer Supreme.  To prevail on a necessity defense, the person must have acted out of an objective actual knowledge that they were preventing some form of harm.  The objective aspect is determined by whether a reasonable person would also have acted in the same way under similar circumstances.  In this case, would an aspiring Sorcerer Supreme have broken The Abomination out of jail to guard our dimension.

            First, we must examine the importance of the Sorcerer Supreme.  As Screen Rant defines the job: “The Sorcerer Supreme carries the intimidating weight of protecting the world by maintaining a mystical barrier that guards against invasions from other realms.”  Scott Silson, What Does Sorcerer Supreme Even Mean & Why It Matters To Doctor Strange.   As Stephen Strange was snapped out of existence by Thanos, it was up to Wong to become the next Sorcerer Supreme to protect our world from, as we saw in Doctor Strange, very real mystical threats.  As Wong tells Jennifer Walters (who hopefully will be representing him), he “extracted [The Abomination] from the prison against his own wishes” because he “required a worthy opponent as part of [his] training to become Sorcerer Supreme.”  So if Wong does not break Blonsky out of prison to complete his training, the Earth would be in danger of imminent invasion from other realms like we saw in Doctor Strange with Dormamu.  

            But again, not so fast, necessity requires no reasonable alternatives.  Yet that may be the case here as well.  When She-Hulk takes place, other powerful beings are unavailable.  As we see in the post-credits scene in Shang-Chi and the Legend of the Ten Rings and episode one of She-Hulk: Attorney-at-Law, Bruce Banner is incapacitated from his own snap at the conclusion of Avengers: Endgame.  Similarly, Thor is off world having left with The Guardians of the Galaxy at the conclusion of Endgame. That reasonably leaves The Abomination as the remaining superhuman equivalent to test Wong’s powers.  Thus, Jennifer Walters can make a good case to a jury that Wong was just saving us from mystical threats by training to fill the role left vacant by Dr. Strange.  You be the jury.

Conflict Experts Fight About Star Wars

Law and the Multiverse contributor Scott Maravilla participated in a panel at DragonCon on Star Wars, negotiation, and conflict resolution in advance of a new book called (appropriately enough) Star Wars, Negotiation and Conflict Resolution. Check out the panel on YouTube!

Lawyers Club of San Diego Virtual Happy Hour

Join me and the Lawyers Club of San Diego for a virtual happy hour this Thursday, May 20th, from 5:30pm – 7pm Pacific including, of course, a discussion of the law of superheroes! Registration is free and open to members and non-members of the Lawyers Club.

Wanda’s Liabilities for the Westview Anomaly

(This guest post was written by Law and the Multiverse contributor Scott Maravilla. Significant spoilers in the main body of the post!)

The Marvel Cinematic Universe (MCU) does a good job of contemplating the ramifications on the civilian population from the actions of superpower beings.  After the Hulk and Iron Man laid waste to Sokovia in Avengers: Age of Ultron, the United Nations stepped in.  The Sokovia Accords became a (literally) divisive moment among the Marvel heroes.  The Accords were an attempt by the governments of the world to reign in superheroes and place them under their control. 

WandaVision continues to dwell on the harm a super human can wreck on regular people.  In this instance, the people of Westview, New Jersey.  WandaVision opens as an homage to the golden age of television.  The show references such luminaries as The Dick Van Dyke Show, Bewitched, The Brady Bunch, Family Ties, and Malcolm in the Middle.  Wanda and Vision, now married, settle into life in the suburbs over a multitude of television epochs.  Along for the ride is nosy neighbor Agnes and her ever absent husband, Ralph.  Ralph is reference to such sitcom characters as Buddy’s wife “Pickles” in Dick Van Dyke who is never seen.

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Law and Popular Culture Online Panel

On Thursday May 21st at 6pm Eastern I will be participating in a (free!) online panel discussion of law and popular culture, sponsored by the Filipino American Lawyers Association of Washington, DC! The panel includes famed graphic novelist Amy Chu and Law and the Multiverse contributor Scott Maravilla. Online registration is free, and we hope to see you all there!

Law and the Multiverse Retcon #11

Way back in 2012 I wrote a post about an episode of the NBC Series Grimm, a show set in the state of Oregon, and the US Supreme Court has just handed down an opinion that reverses my legal analysis. First, a recap of the setup:

The villain of the episode is, unsurprisingly, an ogre.  [Police officer] Nick’s partner Hank helped put [the ogre] in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank.  In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre.  Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.

I went on to conclude that, although a charge of aggravated murder would require a unanimous verdict under Oregon law, it would be possible for the jury to convict the ogre of a lesser included offense, such as manslaughter or aggravated assault, on a less-than-unanimous verdict of 11-1 or even 10-2. Thus, even if 1 or 2 jurors believed the alibi, the other 10 or 11 could have still convicted the ogre of a pretty serious charge. Oregon, where the show is set, was very unusual in this regard. It and Louisiana were the only states where that would be possible. (I apologize that my initial analysis missed Louisiana. I honestly don’t recall if I missed it entirely or if I had some reason for thinking that the lesser included offense trick wouldn’t work there.)

In any event, the U.S. Supreme Court has just ruled in Ramos v. Louisiana that the U.S. Constitution requires a unanimous verdict to convict a defendant of “a serious offense”, overruling the law in Oregon and Louisiana. The Court did not explain what a serious crime is, and it is not a well-defined legal term as far as I know, but I would guess that it would certainly include manslaughter or aggravated assault. Now basically any conviction the jury decided on would require a unanimous verdict, even in Oregon or Louisiana.

Awesome Con 2019

For DC-area readers: I will be at Awesome Con in Washington, DC this Friday, April 26th! I will be part of a panel on “Law and Order in Comics” along with Law and the Multiverse contributors Scott Maravilla and Brad Desnoyer as well as She-Hulk and Daredevil writer Charles Soule! Come check us at in Room 154 at 1:30pm!

Tax Avengers Assemble: The Impact of Tax Reform on Superheroes

Jed Bodger, senior director of taxation at Sierra Nevada Corp, has written an excellent and in-depth discussion of the impact of the recent Tax Cuts and Jobs Act on superheroes and their associated businesses, including Tony Stark, Matt Murdock, Jennifer Walters, Bruce Wayne, Reed Richards, Diana Prince, Peter Parker, Charles Xavier, Hank Pym, and Janet van Dyne.  Originally published in Tax Notes, you can also read the piece here: Tax Avengers Assemble: The Impact of Tax Reform on Superheroes.

The finer points of tax law are definitely outside my area of expertise, so I was quite excited to see a tax attorney’s take on this subject!

My Other Legal Writing

For those who might be interested in what I do with the rest of my time: I contributed an article to the most recent volume of the Washington University Journal of Law & Policy: Embracing New (and Old) Ideas, 53 Wash. U. J. L. & Pol’y 157 (2017).  The volume commemorates the law school’s 150th anniversary, and I was honored to take the invitation to get on my soap box write about some ideas for innovation and reform in legal education.

I also have a forthcoming article in the Boston University Journal of Science & Technology Law, so you can all look forward to a shameless plug for that one in a few months.

The Mystery of Danny Rand’s Inheritance

Several readers have asked the same question about the new(ish) Netflix series Iron Fist: how exactly could Danny legally recover a 51% interest in Rand Enterprises?  This is a good question.  Unfortunately the series doesn’t give us quite enough information to answer it definitively, but I think there are a couple of reasonable theories.  Spoilers follow!

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