Category Archives: administrative law

Batman v. Superman and Import Licenses

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

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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.

Human Remains and the Walking Dead

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog, and a previous guest poster here at Law and the Multiverse.  This post was originally written for the Customs Law Blog and is republished here by his invitation.

Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I’m only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States (“HTSUS”) for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties “corpses, together with their coffins and accompanying flowers.”

When goods arrive at a port in the U.S., they are usually subject to an “entry.” That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customs and Border Protection. The Customs Regulations provide that “all merchandise” is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the “merchandise” to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors? That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don’t know how I missed it when it was issued.

The ruling starts with the ancient legal principle that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King’s Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are “corpses” for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)” exemption. Based solely on longstanding practice, a couple rulings, and “the weight of history,” Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the “merchandise.”

I have a couple of questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a “corpse.” What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a “corpse” and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the “donor” was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a “corpse?” If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct “birthday” would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it’s duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the “owner, purchaser, or consignee” of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.

Captain America and Social Security

Today’s post was inspired by a question from David, who asked:

Wouldn’t [Captain America] be able to collect Social Security? After all, he must be in his nineties by now!

I. Age

Collecting Social Security benefits has a few different requirements, some of which vary according to the age of the beneficiary.  Earth-616 Steve Rogers was born on July 4, 1922, which would make him 90 now.  Most importantly, he was born before 1937, so his full-benefits retirement age is 65 (as opposed to 67 for someone born in 1960 or later).

We’re assuming that his age would be calculated according to the calendar rather than his biological age, but it isn’t 100% clear from the law which is correct.  The main part of the Social Security law (42 U.S.C. § 401 et seq) refers to people having “attained the age of X” rather than referring directly to their date of birth.  Luckily, comic book Cap has been unfrozen long enough that it doesn’t matter.  Rogers was frozen, at the latest, on April 18, 1945 (i.e. at the age of 22) and then thawed out in 1964 (i.e. at the calendar age of 42).  That would give him a biological age of 70 and a calendar age of 90.  So however his age is calculated, he’s eligible to collect benefits.  The only question is: how much would he get?

II. Earnings

Although the Social Security program had started by the time Rogers enlisted, members of the military did not pay Social Security tax.  However, military service from September 16, 1940 through December 31, 1956 is credited at $160/month in earnings, if the service member meets one of the following:

  • They were honorably discharged after 90 or more days of service, or they were released because of a disability or injury received in the line of duty; or
  • They are still on active duty; or
  • They veteran died while on active duty and someone is applying for survivors benefits.

Rogers’s special circumstances don’t quite fit any of these, but let’s assume he was either honorably discharged or has returned to active duty.  Since we have no idea how much Captain America earned during his post-thaw years, let’s assume that $160/month was his only eligible earnings.

Rogers enlisted in 1941.  I’m not sure when, exactly, so let’s say March (when Captain America #1 was published).  That would give 48 months of service.  At $160/month that’s $7,680 in credited earnings.  Because Rogers was born before 1929, he only needs to have accumulated 6 credits in order to be eligible for retirement benefits.  Before 1978 credits were called “quarters of coverage” and required earning at least $50 in a 3 month calendar quarter.  Rogers’s $160/month earnings credit would easily cover that, so he would have no problem accumulating enough credits.

III. Benefits

Unfortunately, calculating Social Security benefits is complicated, and none of the calculators I’ve found know how to handle Rogers’s particular situation.  To get a rough idea of how much he might be eligible for, I calculated the benefits for someone born July 4, 1922 who made $11,086 in 1951 (i.e. $7680 in 1951 dollars) and then $200/year through 1959 (the minimum amount needed to become eligible for retirement benefits) and then retired at 65.  The result?  A whopping $73 per month, or $876 per year, and that’s in 2012 dollars!

Of course, Captain America almost certainly continued to earn money during his post-thaw years.  But because Social Security benefits are calculated based on your 35 highest-earning years, Rogers’s 20 frozen years (during which he presumably earned nothing) put a significant hole in his earnings history.  If he retired in 1987 (at calendar age 65) he would have only about 27 working years behind him.  Those missing 8 years could substantially reduce his benefits.  By delaying retirement until age 70 he could both add more working years and earn a delayed retirement benefit.

IV. Conclusion

Captain America is likely eligible to draw Social Security retirement benefits, regardless of how his age is calculated, but his limited wartime earnings and years spent frozen mean that his benefits might not be all that huge.  On the other hand, since he can continue working indefinitely due to the effects of the super soldier serum, he’s probably not dependent on those benefits.

Castle: “Cloudy With a Chance of Murder”

I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1.  The first issue was brought to our attention by Naomi, who writes:

In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?

So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside! Continue reading

The Rocketeer (comic book)

The Rocketeer is the 1980s Dave Stevens eight issue comic book that was turned into the 1991 Walt Disney movie. The premise should be well-known at this point: a late 1930s stunt pilot stumbles upon a prototype jetpack. Hijinks ensue. This is, of course, not to be confused with racketeering, which is another thing entirely. But we know that racketeering is illegal. Is “rocketeering”?

It turns out that the plot of the comic book and the movie diverge widely, so this time we’re going to be talking about the comic book. Specifically, we’re going to take a look at two issues, one of which we’ve touched on before: air traffic control and receiving stolen property.

I. Air Traffic Control

Perhaps the most obvious legal issue here is the fact that the Rocketeer is using an experimental flying machine, and flying machines of all sorts are subject to the regulative authority of the Federal Aviation Administration. We talked about this issue in a two post series back in December 2010. In that post we had a discussion about whether something like a jet pack would be considered an “experimental” device and thus subject to lighter regulation. In this case, we can categorically say that the Rocketeer’s jet pack would not fall into this FAA category. Why? Because the FAA didn’t exist until 1958.

This is not to say that there was no federal regulation of US airspace before then. The Air Commerce Act (May 20, 1926, ch. 344, 44 Stat. 568) was enacted over a decade before the events in the story, set in 1938. The ACA of 1926 empowered the Department of Commerce to regulate US airspace and air transportation generally, but it took quite a few decades before our current system would emerge. Indeed, air traffic control didn’t even exist as late as the mid 1930s, and when the Bureau of Air Commerce—the renamed Aeronautics Branch, still part of Commerce—took over air traffic control operations in 1936, there were only three ATC operations in the country, presumably near major airports. Remember, radar was still in the process of being invented. The Civil Aeronautics Act was passed in 1938—the year of the story—which further increased the government’s regulatory authority. But the full panoply of FAA regulations would not really come about for decades. So while the Rocketeer might have been violating a few aviation regulations, one gets the impression that the aviation regulatory regime was still in its infancy, and there was a lot of unregulated activity going on. As an exhaustive accounting of the state of such regulation in the late 1930s is more the subject for a scholarly article than a blog post, we’ll leave it at that.

II. Receiving Stolen Property

The other issue is the legal status of Secord’s possession of the jet pack. The question is whether there could be any additional offenses beyond the old common law receiving stolen property, which the story recognizes as being applicable. Here we run into some of the same issues as with aviation regulations: the law in 1938 was significantly different, and less extensive, than it is today. What is currently the foundation of federal criminal law and procedure, Pub. L. No. 80-775, 62 Stat. 683 was only passed in 1948. Legal research websites are very careful to show only the latest, amended versions of laws currently in force, so laying hands on a copy of the US Code current through 1938 is kind of difficult.  Luckily, we don’t have to go quite that far.

It’s fairly safe to assume that some version of 18 U.S.C. § 641, which criminalizes receiving stolen property belonging to the federal government, existed in 1938. But 18 U.S.C. § 793 on “gathering, transmitting, or losing defense information”? Which makes it a crime to be in the unauthorized possession of any “instrument” “relating to the national defense” and “willfully retains it”? Turns out that that is merely a recodification of a provision which is part of the Espionage Act of 1917, Pub.L. 65-24, 40 Stat. 217. So because Secord knows that the jet pack “relates to national defense,” knows he isn’t supposed to have it, and doesn’t surrender it to government officials—either on his own or when asked—he’s in violation of the Espionage Act. That’s good for a $10,000 fine and two years in the federal pen. And since the two crimes each have an element lacking in the other, neither is a “lesser included offense,” which means Secord could do the full time for both offenses. Now we’re talking a $10,000 fine, plus the value of the jet pack (which may be a lot higher than that), plus three years in prison.

And that’s just for those two. A US Attorney in the late 1930s would undoubtedly have been able to come up with a few more, just for good measure, to say nothing of whatever state laws Secord may have broken.

III. Conclusion

So the most significant legal issue in the Rocketeer isn’t actually one of substantive law, but of legal research: it’s very, very important to know when something occurred, because the law changes, and usually not retroactively. Sometimes a little, e.g., many of the same criminal offenses in play today were present in some form in 1938. Sometimes a lot, e.g., even the precursors to modern FAA regulations didn’t exist in 1925. Sometimes this change is slow, e.g., the espionage offense discussed here uses the same language as was in force in 1917, and sometimes rapidly, e.g., an entirely new area of federal regulation springing into existence overnight in 1926. But a lawyer—or citizen!—that assumes that they know what the law is because they know what the law was may be in for a nasty surprise.

That’s about it for the comic book of The Rocketeer. We’ll be back for the movie in a bit!

The Dark Knight Rises III: Nuclear Shenanigans

Last week we mentioned that there are some… problems with the way the law is handled in The Dark Knight Rises. Specifically, the corporate angle doesn’t make any sense, and there are some real unresolved issues pertaining to Bane’s occupation of Gotham.

This time, we’re going to look at something mentioned by a few commenters, i.e., how the heck did Wayne Industries build a fusion reactor immediately below Gotham City?

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[amazon_link id=”B005LAIHXQ” target=”_blank” container=”” container_class=”” ]Prometheus[/amazon_link] came out last weekend. It’s… ambitious. Reviews are mixed. But, as always, we’re not here to talk about the merits of the movie as such, but rather about legal issues raised by the movie. The most obvious one here is the issue of private space exploration and travel. The premise of the movie is that in the late 21st century, Weyland Corporation spends $1 trillion on a project to send a research team to a moon orbiting a gas giant in the Gliese 86 system. Can a private corporation decide to just do this? Continue reading

The Avengers: Arc Reactors and NYC Zoning Laws

For today’s post I’m going to talk about a serious legal issue raised by The Avengers, the issue everyone has been talking about since the movie debuted.  Although it was only hinted at in the movie, I know I can’t wait to see it addressed more fully in Iron Man 3 or even The Avengers 2.  That’s right, I’m talking about how Pepper Potts is going to handle the zoning permits for the buildings powered by arc reactors.

Okay, I may have exaggerated the significance of the issue a wee bit, but it’s still an interesting question.  In fact, Stark Tower raises a host of land use law questions, and the arc reactor is just one of them.  For simplicity, we’re going to assume that Stark Tower was constructed recently (rather than a rehab of a prior building) and had to comply with modern land use laws.

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building.  This doesn’t change the analysis.  Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area.  As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district).  Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent).  There are various ways to increase the FAR, such as having a public plaza on the lot.  The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones.  Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.”  Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing).  Unfortunately, research and development is not allowed as a permitted or conditional use in this district.  In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation.  How can he get it?  There are many possible ways.

II. Getting Around Zoning Laws

He could argue that the zoning regulation is unconstitutional, improperly enacted, or unauthorized by the City’s charter, or he could lobby for an amendment to the regulation.  I don’t know of any reason the regulation in question would be unconstitutional or otherwise invalid, so we won’t go into any more detail there.  If New York is anything like cities that I’m more familiar with, the most likely approach is an amendment to the zoning regulations.

A. Rezoning

Rather than seek a blanket change to the C5-3 district, Stark could propose a zoning amendment to change 200 Park Ave to C6.  Zoning amendments are subject to the Uniform Land Use Review Procedure.  As described by the Department of City Planning, “The ULURP is the public review process, mandated by the City Charter, for all pro­posed zoning map amendments … . ULURP sets forth a time frame and other requirements for public participation at the Community Board, Borough Board and Borough President levels, and for the public hearings and determinations of the Community Boards, Borough Presidents, City Planning Commission (CPC) and City Council.”

So getting a zoning amendment through will require the cooperation of at least five different government entities, plus the public.  Luckily, changing from a C5 to a C6 isn’t too dramatic a shift.  It’s not like Stark wants to build a chemical plant  in the middle of Manhattan.

B. Variance

Another alternative is to seek a variance.  “A variance is an authorization for a landowner to engage in construction or maintenance of a building or structure, or to establish and maintain a use of the land which is  prohibited by a zoning ordinance. It is a right granted by a zoning board of appeals pursuant to power vested in such an administrative body by statute or ordinance, and provides a form of administrative relief from the strict application of zoning regulations.”  Patricia E. Salkin, 2 N.Y. Zoning Law & Prac. § 29:1.  In particular, Stark would be seeking a use variance, since he wants to use the land in a way prohibited by the zoning ordinance.

In New York City, the zoning board of appeals is the New York Board of Standards and Appeals.  The test for use variances is defined by statute in N.Y. General City Law § 81-b:

In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(i) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(iii) the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(iv) the alleged hardship has not been self-created.

This is kind of a tall order, especially the first two requirements.  Stark would have to show that none of the permitted uses of the property would allow him to realize a reasonable return and that for some reason only this particular location is problematic in that way.  It’s pretty hard to buy the idea that Stark couldn’t make decent money off of an office tower in Midtown Manhattan unless he can put ten floors of R&D on it.  But I suppose clever attorneys and experts could craft an argument for it.  Further, Stark would need to show that the whatever unique hardship he is relying on as justifying the variance is not shared by a significant amount of the surrounding properties.

And what if the BSA says no?  Well, then Stark could take the issue to court.  “Actions of the zoning board of appeals are subject to review by the courts, to determine whether the board acted within the limits of its jurisdiction, whether the standards imposed by statute and ordinance were respected, whether the procedural rights of the litigants were observed, and whether the board was chargeable with any abuse of its discretion.”  2 N.Y. Zoning Law & Prac. § 28:30.

A court will not lightly disturb a board’s decision not to grant a variance, however.  “Since the zoning board is given discretion in these matters, the court’s function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion. The board’s determination will be sustained if it has a rational basis and is supported by substantial evidence.” Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 608 (1978).  This kind of deference is common with administrative agencies.  After all, what’s the point of an expert agency if a court can easily overturn its decisions?

III. So About Those Arc Reactors

So far I’ve been talking about the research & development floors.  But what about  the arc reactors?  Well, that’s tricky because it’s not clear just where the reactor is located.  Is the reactor in the building or is it part of the device Stark attaches to the undersea cable?  If the reactor isn’t in the building then that solves quite a few zoning issues.  If it’s not, well….it’s complicated.

Electric power plants aren’t allowed in any kind of commercial district.  Instead, they’re allowed in certain manufacturing districts, New York’s version of industrial zones.  However, just this month the City has adopted new regulations making it much easier for building owners to install solar and wind power generation equipment and even to provide power to adjacent buildings, so long as utility company requirements and other regulations are complied with.  In a world where the arc reactor exists and has been proven safe, it’s entirely believable that the City would allow on-site power generation by arc reactors though it would likely require a text amendment to the current ordinances.

IV. Conclusion

The arc reactors and Stark Tower pose some interesting land use questions, but it’s nothing that couldn’t be resolved with straightforward rezoning or a variance.  Honestly, getting FAA approval for his suit would be a much bigger headache.  So while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective.

Snakes on a Plane

Snakes on a Plane is a terrible, terrible movie (see for yourself, if you don’t believe us).

It’s also bad on the law.

The premise of the movie is that Samuel L. Jackson (who basically plays the movie version of himself, so we’re going to call him Jackson instead of “Neville Flynn”) is escorting a witness from Honolulu to LA to testify in a murder trial there. This is weird in and of itself, but so’s the way they travel: the FBI commandeers the first class cabin of a commercial flight. This is all kinds of wrong. Continue reading