Category Archives: administrative law

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?

Continue reading


Prometheus 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

Ghostbusters and the EPA

Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters.  Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city?  And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?

I. Were the Ghostbusters Duly-Designated Representatives of New York?

It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer.  That much covers the city.

Moving one level up, we turn to the county.  The five boroughs of New York City are each coterminous with a county.  For example, New York County covers the same area as Manhattan.  The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city.  There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning.  Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.

Finally there’s the state level.  New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.

So what kind of authorization could there be?  One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655.  That would give the Ghostbusters the powers of regular police officers.  Not actually very helpful against an ancient Sumerian deity, but it’s something.  At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.

Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.

II. Are Ghosts a Pollutant?

Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters.  He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.

* The EPA actually divides the country into regions.  Region 2 covers New York.

** There is no such federal law in the United States.  Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones.  There’s no Environmental Protection Act, though.

Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution.  For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”

shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring

42 U.S.C. § 9601(33).  That’s pretty dang broad and would definitely include hallucinogenic gases.

One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed.  In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.

But we can gloss over all of those issues.  What we really want to know is whether ghosts could qualify as a pollutant.  Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that.  But were the ghosts at least a potential pollutant?

I think they could be, at least under some environmental laws.  The fact that ghosts are, in some sense, living organisms doesn’t seem to matter.  For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act.  33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water).  The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air.  42 U.S.C. § 7602(g).

So it appears that the federal government could potentially regulate the release of ghosts into the environment.  Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.

III. Conclusion

If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing.  Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.

Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor.  The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.

Buffyverse Vampires and Criminal Liability

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

Getting Rich with Superpowers, Part 1: Insider Trading

We’ve previously talked about how immortal beings might find it difficult to amass significant wealth simply by virtue of living a long time.  This post marks the first in a series on how other common superpowers might be used to make money in the short term.

One way to make (or lose) a lot of money is via the stock market, and several superpowers lend themselves to taking advantage of the market: telepathy, enhanced senses, invisibility, and time travel, just to name a view.  Each of these could be used to come across valuable information without necessarily breaking any other laws (e.g. without trespassing).  For example, someone with Superman-level enhanced hearing could easily overhear a boardroom conversation, and an invisible person could similarly overhear sensitive conversations in public places. The question, then, is whether using any of this information would run afoul of insider trading laws.

(Note: do not try any of this at home, at least without consulting a competent attorney in your jurisdiction.)

I. Insider Trading

There are three major theories of insider trading liability.  First, one cannot trade on material, nonpublic information if one owes a fiduciary duty  to other traders in the marketplace. Chiarella v. United States, 445 U.S. 222 (1980).  This covers the most common types of insider trading: corporate insiders who trade on confidential information or who give confidential information to an outsider in breach of a fiduciary duty.  See also Dirks v. S.E.C., 463 U.S. 646 (1983).

The second theory is “misappropriation.”  “The misappropriation theory holds that a person commits fraud “in connection with” a securities transaction, and thereby violates § 10(b) and Rule 10b–5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.”  United States v. O’Hagan, 521 U.S. 642, 652 (1997).  This, then, covers the case in which the source of the information is a patsy rather than complicit.  It still requires that the misappropriator owe the source a fiduciary duty, however.

The first two theories are based on applying common law theories of fraud to the SEC rule against fraudulent trading.  The third theory is based on Rule 14e-3, which specifically forbids a certain type of insider trading.  “Rule 14e-3 prohibits any person who is in possession of material nonpublic information relating to the commencement of a tender offer, acquired directly or indirectly from either the bidder or the target company, from trading in target company securities. It also makes unlawful passing on any such information where it is reasonably forseeable that the recipient will trade.”  Donald C. Langevoort, 18 Insider Trading Regulation, Enforcement, and Prevention § 1:10.  On the one hand 14e-3 is broad because there is no requirement of a fiduciary duty, but on the other hand it is narrow because it only applies to tender offers (e.g. mergers and acquisitions).

So, now that we have a rough idea of what constitutes insider trading, let’s see if any common superpowers can allow someone to acquire material, nonpublic information without running afoul of any of these theories.

II. Superpowered Reconnaissance

The first thing to do is to forget about using insider information to take advantage of a potential merger or acquisition.  Rule 14e-3 would almost certainly apply, so our hero (or villain) will have to stick to other kinds of valuable information (e.g. an R&D breakthrough or a pending product recall), and that’s the context we’ll assume for the rest of the post.

In general, merely overhearing something (e.g. a conversation between company employees) in a public space is not a violation under the first two theories because there is no fiduciary duty being broken: the recipient owes the company and its shareholders no duty, and the employees aren’t improperly tipping off the recipient.  So enhanced senses and invisibility would seem to be a good fit.

Telepathy is more problematic.  As we’ve discussed before, telepathy may run afoul of a person’s right to privacy.  Would discovering information about a company be highly offensive to a reasonable person?  Would it matter if the victim was a regular employee of a giant company or an emotionally-invested founder of a small business?  It’s hard to say how a jury would react.  It is not clear to me whether this kind of privacy violation would be sufficient to trigger insider trading laws, however.  The law prohibits the use of deception to acquire insider information, and telepathy could qualify, though it seems a bit strained. S.E.C. v. Dorozhko, 574 F.3d 42 (2d Cir. 2009) (holding that computer hacking to obtain insider information may be “deceptive device or contrivance” prohibited by Rule 10(b) and Rule 10(b)-5).

Time travel seems to be the cleanest of all: the superpowered schemer could simply wait until the information was public, then travel back in time and use it profitably.  This suggests the scheme in Primer might have been legal.

The previously mentioned prohibition against deception suggests that shapeshifting, psychic manipulation, and other forms of trickery wouldn’t work.

III. Conclusion

With the right superpowers and a little luck it may be possible to profit from the stock market without running afoul of insider trading laws.  Has this ever been tried in the comics?