Author Archives: James Daily

Jim Gordon and the Felony Murder Rule

Today’s post was inspired by a question from Christopher about the first episode of the new season of Gotham.  His question presents an interesting twist on felony murder.  Spoilers below:

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Super Heroines in the Pub

This Monday, September 28th, I will be giving a talk on Batman villains and the insanity defense as part of a Super Heroines, Etc. event here in St. Louis.  Super Heroines, Etc. (aka SHE) is a St. Louis-based 501c3 nonprofit focused on empowering women through educational events, classes, and workshops.  I’m looking forward to it and hope to see many of you there!

Law and the Multiverse Retcon #10

Time for another installment of the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Alert readers will notice that there was no Retcon #9.  This is because there are actually two Retcon #6s, and I have decided to retcon the Retcon numbering system as though I had not lost the ability to count to 10 at some point between kindergarten and last year.

This Retcon addresses some of my shortcomings on a recent episode of the Geek’s Guide to the Galaxy podcast, specifically my discussion of Man of Steel and Superman’s possible civil and criminal liability for the destruction of Metropolis.  I saw the movie when it was released and had forgotten several key plot points that affect the legal analysis.  Thanks to Damon for pointing out these issues!  Some spoilers for Man of Steel follow.

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Naomi Hinchen on Wizard Politics

Following a theme for the day: Just as with Star Trek, I also rarely talk or write about Harry Potter, since the details of its fictional legal system are kind of fuzzy.  Luckily, long-time reader Naomi recently wrote a post on her blog that raises some great questions about the interaction between the wizarding and muggle legal systems.

Star Trek and Customs Law

Star Trek is usually outside the scope of this blog, since its fictional legal systems are a) quite a bit different from ours and b) not very well fleshed-out in any of the TV series or movies.  But previous guest author Larry Friedman has recently found a way to bring Star Trek and the law together on his Customs Law Blog, with a post about a customs ruling involving Star Trek toys.  Larry goes on to muse about the role of customs law in the Star Trek universe.  As it turns out, a check of a database of Star Trek transcripts finds a few references to cargo manifests, particularly on Deep Space Nine (unsurprising given the setting).  So while we don’t see a lot of customs law on Star Trek, it does exist.

Geek’s Guide to the Galaxy Interview

Occasional guest author Brad Desnoyer and I were interviewed for the Geek’s Guide to the Galaxy podcast, hosted by  Thanks to David Barr Kirtley for a great interview!

What Zombies Can Teach Law Students

Professor Tom Simmons at the University of South Dakota just published a great law review article titled What Zombies Can Teach Law Students: Popular Text Inclusion in Law and Literature, 66 Mercer L. Rev. 729 (2015).  Drawing on popular works such as The Walking Dead and World War Z, Simmons shows how many legal issues can be illustrated and explained in the classroom using examples that are more interesting than the abstract “A sues B” type and more engaging than examples from more “serious” literature.

I applaud Prof. Simmons’s work, which follows and greatly expands upon some of my work in this area as well as the work of Prof. Adam Chodorow at ASU and the work of Lawrence M. Friedman at John Marshall.  Anyone interested in zombie fiction or novel legal teaching methods should give the article a read.

Ant-Man: Robbery vs Burglary vs Theft

I saw Ant-Man this weekend and thoroughly enjoyed it.  Appropriate to the title character, it’s a movie that deals in seemingly small things with larger implications.  Largely disconnected from the wider Marvel Cinematic Universe plot arc, Ant-Man is a pleasant break from the Dramatic Global Crisis or Dramatic Cosmic Crisis themes of the Avengers and their individual films.

But you didn’t come here to read a movie review.  So let’s take a closer look at a fine legal distinctions that the protagonist, Scott Lang, makes a few times in the movie: robbery versus burglary.  Some minor, early spoilers ahead.

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Uncle Ben at the Supreme Court

Thanks to Joe, Josh, and others for pointing out Justice Kagan’s quotation in yesterday’s decision in Kimble v. Marvel:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

I happen to disagree with the majority’s decision; Brulotte v. Thys was wrongly decided*, and the Court wasted a rare opportunity to correct a mistake.  So on the one hand the citation and other references to Spider-Man were fun, but on the other hand it felt a little too cute by half for a decision that will ultimately result in Marvel (now part of the second largest media company in the world) avoiding royalty payments to an individual inventor whose idea Marvel (apparently) pretty blatantly ripped off.  The tone of the opinion is incongruous with its consequences.

It may seem a little overly dramatic in a case that is ultimately about money, but I am reminded of Robert Cover’s Violence and the Word:

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

This is not to say that all judicial writing should be humorless.  I have enjoyed reading any number of funny, often acerbic opinions, but those opinions were usually written in response to parties that were themselves behaving badly or foolishly, and so deserved to be treated lightly or even mockingly.  In this case, however, the Court has sided with a multi-billion dollar corporation over an individual inventor and did so on fairly technical grounds.  The majority interpreted the law of stare decisis, and as a result Stephen Kimble lost his property (i.e. the contractual right to royalties from sales of the patented toy).  This does not seem like an appropriate occasion for such levity.

Stepping back off my soap box, I promise the next post will return to discussing the legal implications of comic book hijinks.

* A full discussion of why this is the case is beyond the scope of this blog, but if you’re interested, see the dissent in Kimble and Judge Posner’s opinion in Scheiber v. Dolby Labs.

Who’s paying for all of this?! Thor: the Dark World Part 2

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the first part of my examination of Thor: the Dark World, I looked at who the University of Greenwich (“the Claimant”) could sue for the property damage it suffered as a result of the battle between Thor and Malekith in the final act of the film. Here, we take a look at whether the Claimant may still be compensated for its loss by suing the employer of the film’s protagonists, S.H.I.E.L.D., under the doctrine of vicarious liability.

The conclusion reached in my previous analysis was not a good one for the Claimant. There is a claim against Malekith, but serving his estate in the realm of Svartalfheim with a claim form would be difficult. Suing the God of Thunder presents the same problem, but there is also the additional concern of public authority immunity from negligence claims. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby (“the Additional Party”) all had a hand in the loss suffered by the Claimant as well, but the amount of assets they own would make recovery from them pointless. It would seem then that the University would have to pay for the renovation of their institution out of their own pocket.

Luckily, the University of Greenwich may still raise a claim against S.H.I.E.L.D. as the employer of the film’s protagonists. This would be under the doctrine of vicarious liability, which makes an employer liable for the torts committed by its employees. This is a very attractive option for the Claimant because not only is S.H.I.E.L.D.’s primary residence on Earth, it possesses a substantial fortune to recover from. In the second part of my analysis of Thor: the Dark World, I look at how the University of Greenwich can argue the doctrine of vicarious liability in English tort law in making S.H.I.E.L.D. liable for the negligence of Thor and his companions.


Vicarious liability

Simply put, vicarious liability makes an employer liable for a tort committed by the employee. The tort in question here is negligence. The doctrine requires that (i) a tort was committed by the employee; (ii) that the employee can be said to be in a relationship of employment with the employer; and (iii) that the tort was committed in the course of employment. In the first part of my analysis, I had established already the strong case that the Claimant has against the defendants for negligence. The following discussion will focus on the second and third requirements of vicarious liability as they relate to Thor and the Additional Party.


An employment relationship

It may seem obvious who the employee and employer are between the two parties, but determining whether such a relationship existed when a tort was committed has proven to be a complex matter for the Courts. The starting point will be something as simple as whether there is a contract of employment in existence. But beyond the hard evidence available, the traditional test has been one of control: an employer is someone who could not only tell an employee what to do, but also how to do it. Deviations are made from this general test depending on the facts and circumstances of each case. Take an employee who possesses special skill, such as the ability to summon lightning. An employer may well be able to tell Thor what to do with this skill, but giving orders on how to do so is another matter entirely!

In fact, the traditional test of control has shown its limits in applicability over the years. In the case of Cassidy v Ministry of Health [1951] 2 KB 343, an employer was found liable for the torts of its employees despite the fact that the latter had special skill and thus an absence of control. The modern approach of whether there is an employment relationship takes a holistic view; the courts will take a look at the entire relationship. Certain elements will undoubtedly be of particular significance, such as the degree of control, who has the right of appointment and dismissal, method of payment, and the provision of work equipment (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497).

The film does not provide much evidence as to what sort of relationship S.H.I.E.L.D. has with Thor or the Additional Party. We know from Avengers Assemble that Thor is at the very least an Avenger, and Mr Selvig was working for S.H.I.E.L.D. at the beginning of that film before he was brainwashed by Loki. However, Mr Selvig was interned in a mental hospital by the time of Thor: the Dark World, so his employment with S.H.I.E.L.D. may have terminated. Finally, there is no indication as to whether Ms Foster, Ms Lewis and Mr Boothby work for S.H.I.E.L.D. either, despite sharing similar goals.

Regardless, let us not have something as silly as the lack of evidence halt us from our analysis. Were an employment relationship to be assumed, the Claimant must next prove that the tort committed by Thor and the Additional Party was done in the course of employment.


In the course of employment

It is not enough that S.H.I.E.L.D. was the employer at the relevant time; the tort must also be committed in the course of employment. So an employer cannot be made liable for a tort committed by an employee off the clock. Answering this question does however bring us back to the consideration made in the first part of my analysis concerning acting in a public versus private capacity. Remember, the UK Courts have shown a reluctance to impose a duty of care on a public authority for policy reasons. The preliminary question then is whether S.H.I.E.L.D. is a public authority.

The publication history of S.H.I.E.L.D. has shown that control over the organisation has shifted between the United Nations and the United States government depending on the storyline. Fortunately, both bodies are considered public authorities, which suffices for the purpose of this discussion. Thus, as employees of S.H.I.E.L.D., as a public body, there is a viable defence for our heroes to be exempt from liability for policy reasons.

Nevertheless, let us consider the possibility that S.H.I.E.L.D. is a private body. In determining this component of vicarious liability, the Courts have traditionally adopted the Salmond test. This test states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. The Courts have however demonstrated a tendency to go beyond this test by looking at how closely connected the tort is with the employment.

The relevant principle to be applied concerning the close connection test is whether the tort is so closely connected to the employment, the employer can be said to have introduced the risk of the wrong (Lister v Hesley Hall Ltd [2001] UKHL 22). The tort our heroes are liable for is the property damage they caused in the course of battling Malekith. The mandate of S.H.I.E.L.D. is the defence of Earth from paranormal and superhuman threats. It is therefore likely that Thor and his companions would be found acting in the course of their employment given the close connection found between the purpose of their conduct and the raison d’etre of S.H.I.E.L.D.

It can be concluded then that if S.H.I.E.L.D. is considered to be a public body, then our heroes have acted in the course of their employment sufficient to absolve themselves from liability. But if S.H.I.E.L.D. were a private body, then it would be vicariously liable for the torts committed.



Taking stock of the conclusions made in the first and second parts of my analysis, the University of Greenwich is advised to raise a claim against S.H.I.E.L.D. for the vicarious liability of Thor and the Additional Party. The defendant will argue vigorously that they should be exempt from liability on public policy grounds, but failing such a defence, the close connection test will prevent the employer from distancing itself from the actions of the film’s heroes. Claiming against S.H.I.E.L.D. is the most attractive option given the vast fortune it possesses, and the practical advantages of serving a claim form on a defendant that maintains a primary residence on Earth.