Category Archives: civil procedure

Man of Steel

I just got out of Man of Steel, and there’s something of a doozy of a legal question pretty early on. There are some very mild spoilers inside, but no real plot points, so proceed at your discretion. Continue reading

Firestorm on Trial, Part 5

Finally we come to the actual trial, in Fury of Firestorm #48.  I’m afraid it’s a bit of an anti-climax, but it’s written in a television courtroom-drama kind of way.  Given that the writer (Gerry Conway) went on to write and produce for several police procedurals, that’s not too surprising, but it’s interesting to compare Conway’s courtroom writing style to, say, Mark Waid’s in Daredevil.  Once we get to Smoak’s lawyer’s speech I think you’ll see what I mean.

I. The Setup and the Speech

Just before the trial we learn that Smoak apparently didn’t remember being knocked out by Ronald before he transformed into Firestorm.  We also learn that Firestorm will be representing himself.  The plaintiff’s attorney makes the first opening statement, which is the usual order.  His theory of the case is very emotionally charged, which makes the parties’ joint decision to waive their right to a jury trial a little weird to me.  Anyway, here’s his speech:

Your Honor, we live in a complex world.  Every day the average citizen encounters danger from a hundred, a thousand different directions. Poisoned cheese…faulty breaks in a new car…industrial pollution…medical incompetence…bankrupt financial institutions…The threats to our well-being are manifold, and common to all of these threats is a contemptuous disregard for the safety of the American citizen.

Where can the citizen turn for protection against those who would harm by their negligent disregard for his basic human right to life, liberty, and the pursuit of happiness? Only here, your Honor, to the courts.

Here, the defenseless citizen is given armor against those who would crush him without a thought.  Here, redress is made, however inadequate, for the injuries caused by uncaring, incompetent, cynical betrayers of society’s trust.

Your Honor, the concept of professional malpractice is well established in law and legal tradition.  The doctor, lawyer, or other professional whose negligence or incompetence brings injury to a client can be sued for damages.  Malpractice is usually associated with the exchange of a fee for services … and there are those who might argue that the defendant, a self-styled “super-hero,” performs his services gratis, without recompense.  But how do we define recompense for a so-called “heroic act”?  What “payment” does the “super-hero” receive for his deed

The answer, I submit, is obvious.  For his services, the “super-hero” receives a princely fee…public adulation.  The “super-hero” is indeed well paid in a coin most of us never see.  The public is the “super-hero’s” clientele; the fee simply is fame.

What ego!  What arrogance!  Self-anointed “heroes” endangering the lives of innocent citizens, destroying property without qualm or consideration, unlicensed and uncontrolled grandstanding for the reward of a two-minute feature on the evening news!

And who pays for the damage these “super-heroes” cause then their deeds go awry? We do, your Honor!  The citizens of the Republic.  We pay, every man, woman, and child in the country.  I say, enough!

Let those who cause the damage pay for their contemptuous incompetence!  Let us judge them by the same standards we use to judge ourselves!  This man, your Honor, the defendant known only by the alias Firestorm, destroyed my client’s established business by a reckless misuse of power.  He must pay, your Honor, in our common coin.  We ask one million dollars in damages and punitive payment.  And he will pay, if there is any justice left in this sorry world.  Thank you.

See what I mean?  A speech like that could have been delivered by Jack McCoy or (more appropriately, since this is a civil case) Alan Shore.  It’s a great example of a Hollywood opening statement and a terrible example of a real-world one.

In the real world, opening statements have a lot of statements like “we will show that the defendant knew that magnetism could affect computers” or “you’ll see that the defendant could have easily and safely subdued the criminals without endangering the plaintiff’s property” or “you’re going to hear from Ms. Smoak, who ran a successful computer software business that would still be operating today if it were not for Firestorm’s negligence.”

But we can look past the style.  What about the substance of the arguments?  And did you notice that somehow Smoak’s damages claim went from $8 million from the freight train incident alone to just $1 million in compensatory and punitive damages?

II. The Plaintiff’s Argument

Smoak’s lawyer’s theory of the case is sort of all over the map.  He’s sticking with malpractice, but his malpractice theory is a novel one to be sure.  He’s apparently assuming that superheroes are potential professionals and jumping straight to the question of whether they are paid.  As we discussed a few posts back, payment isn’t really the issue.  And even if it were, it would be a big leap from public adulation to a professional-client relationship with a particular rescuee.

The plaintiff’s attorney also freely mixes malpractice, negligence, and recklessness, all of which are different standards of liability.  It’s possible that he’s advancing all three theories, which is likely what would happen in a real case, but it comes across as confused.

The opening statement does touch on an interesting public policy argument, which is that, one way or another, superheroes need to be held liable for the collateral damage caused by their powers.  Since insurance apparently rarely covers such damage, there’s definitely an argument to be made about shifting those costs onto the superheroes themselves in order to encourage more responsible use of their powers.

III. The Outcome

Alas, we don’t get much more of the trial than this.  Firestorm makes a little speech of his own, basically conceding most of the plaintiff’s argument, but saying that he doesn’t help people for the attention or glory but rather because he has the power to do so and it’s the right thing to do.  In the end, Smoak voluntarily dismisses the lawsuit (which evidently was not a class action after all), and that’s pretty much the end of that.

IV. Conclusion

Overall, the trial of Firestorm raises some interesting questions about superhero liability and who should bear the cost of their mistakes, but it doesn’t give very satisfying answers.  The legal parts of the story could have been a little more accurate, but they were okay, especially allowing for some dramatic license.  All in all, about on par with an average episode of Law & Order, actually.

Firestorm on Trial, Part 4

We’re going to fast-forward several issues from #29 to #45-46.  Although not a whole lot developed in the lawsuit storyline in the intervening issues, a few important events occurred.  (Thanks to reader Methane for the highlights).

Smoak, now apparently out of the job as a result of the damage to computer company, has taken a new job with the same newspaper that employs Ronald Raymond’s father, Ed.  (Recall that Ronald Raymond is one half of the two people that combine to form Firestorm.).  Later, they start dating and become engaged.  Smoak manages to personally serve Firestorm with a complaint in the lawsuit.  And Ed meets Smoak’s lawyer, who points out that if Firestorm doesn’t show up to the trial, the court may issue a default judgment against him.

In issue #45 we get a classic awkward dinner scene: Ed and Felicity have dinner with Ronald and his girlfriend, Doreen.  Here we learn some important details about what happened when Firestorm rescued a freight train (destroying a shipment of computer disks in the process) and foiled some villains atop the WTC (wiping the computers in the building in the process).  First, a bit about default judgments.

I. Default Judgments

Smoak’s lawyer is right.  Since Firestorm was actually and personally served with process, a default judgment would likely be granted if he failed to appear.  N.Y. Civil Practice Law & Rules § 3215(a).  The trick would be enforcing the judgment, since Firestorm doesn’t have a known address or assets.  Smoak had to flag him down just to deliver the complaint.

II. The New Details

From the dinner conversation we learn that insurance policies do not cover “super-heroics” by default, and apparently most people don’t get such coverage.  As a result, the loss of the freight train cargo was not covered by insurance.  We also learn that the company kept backups at the central office in Manhattan.  Finally, we learn that when Firestorm magnetized the roof, not only did it wipe the memory of the computers in the office, it also rendered them nonfunctional (“useless, broken beyond repair”).

This resolves several debates from the comments on prior posts.  Insurance didn’t apply, and there would have been significant damages regardless of the presence or absence of off-site backups.  In fact, the damages may have been significant enough to ruin the company.  Without insurance to cover the loss, there may not have been enough cash on hand to cover replacing the computers in the office fast enough to get the company up and running again (remember: this is the mid-1980s, when an ordinary business desktop cost $8700 in today’s money).  So the company’s bankruptcy and Smoak’s estimate of the damages all seem reasonable, even if her claim against Firestorm still rests on somewhat shaky legal and factual ground.

III.  A Tort and A Crime

Later, in Fury of Firestorm #46, Ed, Ronald, and Felicity are at a computer trade expo in Pittsburgh when suddenly a Lovecraftian horror appears and seizes several people, including Ed.  Rather than risk Felicity seeing him transform into Firestorm, Ronald punches her out cold and then deals with the monster.  The monster was actually an illusion created by some other villains, but let’s take a moment to consider this one.

Ronald’s stated justification for punching Felicity is that he needs to get her to safety (she appears to be reaching for Ed as the monster carries him away).  I don’t think the “I had to punch Felicity to save her” defense is going to fly.  He didn’t even seriously attempt to talk to her or even physically restrain her before assaulting her.  And in any case, while such restraint might be justified in the case of an attempted suicide, I don’t think it could be justified in the case of an attempted rescue of another person, however dangerous.

And Ronald’s actual justification is, of course, nonsense.  While Ronald certainly has a right to save his father and the other bystanders, and he may even have some limited right to keep his identity as Firestorm a secret.  But neither of those rights extend as far as proactively rendering people unconscious in order to protect his secret so that he can transform in a public place.  I didn’t pick up issue #47, but I’m curious to see if the writers addressed Felicity’s reaction after she came-to.

In sum: Ronald straight up committed the tort of battery and some sort of criminal assault.

IV. Conclusion

Smoak’s case is on somewhat firmer ground, and Ronald has further established himself as a grade-A jerk.  If you had much sympathy for Firestorm (or at least Ronald) going into this series, I suspect it has been severely diminished by now.  Stay-tuned for the next post, when we finally get to the big event: the trial!

Damage Control: Suits Against Foreign Governments

This is the first post in a series on Damage Control, a limited-run series of comics  from Marvel about the eponymous construction company.  The series answers the question “who cleans up after the heroes and villains have finished fighting?” As you might imagine, it’s rife with legal issues.  Unfortunately, the first three volumes have not been collected as trade paperbacks, but you can start with the first issue here.  Today’s post actually comes from the second issue, which has a hilarious cover.

I. The Setup

The plot of the issue is pretty straightforward.  Damage Control handles reconstruction and repairs for villains as well as heroes, and Dr. Doom is a client. Unfortunately, his account is seriously in arrears, and so Albert Clearly, Damage Control’s comptroller, goes to the Latverian embassy in New York to collect. Once he arrives he is greeted by Count Gunter Flounder, who indicates that not only will Doom discontinue the use of Damage Control’s services but that they do not intend to pay the outstanding bill.  As such, “your only option would seem to be trying to sue a foreign government.”

As it happens, Flounder was apparently embezzling from Doom, not to mention hiding the fact that one of his buildings had been damaged. Doom fires Flounder (“I am nothing if not merciful”) and settles the account with a personal check.  But what if he hadn’t?  Could Damage Control have sued Latveria, assuming that their contract was with the country rather than Doom personally?

II. Suits Against Foreign Governments

Suing a foreign government in a United States court is possible, but it is difficult. The Foreign Sovereign Immunities Act establishes that foreign governments are immune from suit in US state and federal courts unless the claim falls within one of the exceptions in the Act.  The FSIA provides the sole basis for suing a foreign government in a US court.  See, e.g., Garb v. Republic of Poland, 440 F.3d 579, 581 (2d Cir. 2006).  So unless an FSIA exception applies, Damage Control is out of luck.  So what are those exceptions?

In general, the FSIA provides immunity for the public acts of foreign states but not for their private acts. The exceptions are listed in 28 U.S.C. §§ 1605, 1605A, but we are most interested in the commercial activity exception, since this is ultimately about a contract for services.

The first step is to determine whether the commercial activity was done with the  authority of the foreign state.  Some circuit courts have held that actual authority (as opposed to apparent authority) is required. See, e.g., Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307 (9th Cir. 1997).  The Second Circuit, which includes  New York, has held that apparent authority may be sufficient. First Fidelity Bank, N.A. v. Government of Antigua & Barbuda–-Permanent Mission, 877 F.2d 189 (2d Cir. 1989).  Since Dr. Doom himself, the absolute monarch of Latveria, was apparently involved, actual authority seems a given, so the point is kind of moot.

The next step is to determine whether the case deals with commercial activity. In the words of the statute, whether “the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2).  The act further defines commercial activity as “[E]ither a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.”  28 U.S.C. § 1603(d).

The general rule is that an activity is commercial “when a foreign government acts, not as regulator of a market, but in the manner of a private player within it.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992).  With regard to contracts specifically,  “[T]he United States will be found to have had a substantial contact with that activity if substantial contractual negotiations occurred here or if substantial aspects of the contract were to be performed here.” Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094, 1113 (S.D. N.Y. 1982); see also Transcor Astra Group S.A. v. Petroleo Brasileiro S.A.-Petrobras, 409 Fed. Appx. 787 (5th Cir. 2011).

In this case, Latveria contracted with a US company for commercial services to be provided within the United States, and I suspect that the contract was formed in the United States as well, or at least at the Latverian embassy in the United States. On that basis, the commercial activity exception would seem to apply, and Damage Control could have sued Latveria for breach of contract.

As an interesting side note, there would not be a jury trial.  Cases under the FSIA are virtually always bench trials.  The courts have held that a suit under the FSIA is not a suit at common law for Seventh Amendment purposes, and so there is no right to a jury trial. See, e.g. Kraikeman v. Sabena Belgian World Airlines, 674 F. Supp. 136 (S.D. N.Y. 1987).  This is because suits against foreign states were not available at common law at the time of the Seventh Amendment’s ratification in 1791.

I said FSIA cases are ‘virtually’ always bench trials because there appears to have been at least one exception, Martinelli v. Djakarta Lloyd P. N., 106 Misc. 2d 429 (N.Y. City Civ. Ct. 1980).  As in that case a foreign state can be sued in state court, though the FSIA gives foreign states the power to demand removal to federal court, where the case would be tried before a judge.  If a foreign state voluntarily stays in state court, it could be subject to a jury trial.

III. Conclusion

So although it might have been a difficult case (and an even more difficult collection process even if they won), Damage Control could probably have sued Latveria for breach of contract.  Damage Control, Inc. v. Kingdom of Latveria has a nice ring to it, don’t you think?

Daredevil, The Man Without…Jurisdiction?

Here’s one for the serious law nerds: a post about federal jurisdiction and civil procedure.  Daredevil #8 opens with Foggy Nelson serving what appears to be a discovery request on a cemetery employee.  Accompany Nelson are a group of plaintiffs, approximately 15 people, though it isn’t clear if this is all of the plaintiffs or a subset.  The basis of the suit is that Suncourt Cemetery has been negligent in the caretaking of the cemetery, leading to graves disappearing into the ground.

Okay, what’s the big deal?  Well, several things are a little strange here, but nothing’s necessarily wrong.  We’ll start with the lawsuit itself.

I. Negligent Cemetery Caretaking?

It’s not completely clear what Nelson’s theory of the case is.  Foggy says that he thinks “there’s more to it than soft soil,” and we later learn that the graves have been intentionally disturbed or even removed.  This suggests that the theory is that someone has been intentionally messing with the graves and the cemetery corporation is liable for negligently failing to prevent the disturbance.

The law in New York on this subject is unclear.  On the one hand, “the cemetery is under a duty and has a right to prevent any trespass upon the cemetery and its parts and any damage arising from such trespass. This duty and this right come from the fact that individuals interested in graves and lots are entitled to look to those conducting the cemetery for redress for permitting trespass.”  Orlowski v. St. Stanislaus Roman Catholic Church Soc., 292 N.Y.S. 333, 482 (Sup. Ct. Erie Cty, 1936).

On the other hand, other cases have held that there is no implied duty to prevent the robbing of graves and that cemeteries are not liable for damage to graves caused by people not under its control or supervision.  Independent Potok Zloty Sisters & Brothers Benevolent Soc. v. Highland View Cemetery Corp., 264 A.D. 396 (Sup. Ct. App. Div. 1942); Coleman v. St. Michael’s Protestant Episcopal Church, 170 A.D. 658 (Sup. Ct. App. Div. 1915).

So the law in this area is somewhat confused and also very old, but on the whole I wouldn’t bet on the plaintiffs.  A modern New Jersey case agreed with Coleman and held that a cemetery isn’t liable for vandalism caused by a third party.  Bauer v. Harleigh Cemetery Co., 651 A.2d 1084 (Sup. Ct. N.J. 1994).  And even if cemetery owners had a duty to prevent trespass, it’s not clear how reasonable care would have prevented grave robbing by the Mole Man (well, okay, it could have been somebody else but it sure looks like his handiwork).

So the suit is a little creaky, but there’s a colorable argument, particularly in light of the conflicting precedents and their age.  Other, larger questions remain, however, questions of procedure and jurisdiction.  Since procedure depends on jurisdiction, we’ll go there next.

II. Making a Federal Case Out of It

One of the odd things about the opening scene is that Foggy is holding a document that appears to be from the United States District Court for the Southern District of New York, which includes New York City.  But the case is plainly based on New York state law, so why are they in federal court?

The logical answer is “if it isn’t based on a federal claim, then it must be based on diversity of citizenship.”  Diversity of citizenship is found in the Constitution, which allows federal suits “between Citizens of different States.”  U.S. Const. art. 3 § 2.  As a general rule, a plaintiff can sue in federal court on a state law claim if none of the plaintiffs are from the same state as any of the defendants (aka “complete diversity”) and the amount in controversy exceeds $75,000, per 28 U.S.C. § 1332.

Complete diversity seems like bad news for Foggy, as it’s unlikely (though admittedly not impossible) that all of these surviving relatives are living outside of New York.  Further complicating things: if any of the relatives are suing as the representative of the estate of the deceased rather than in their personal capacity, then their state citizenship is the same as the deceased, which is presumably New York.

But there’s another glimmer of hope: they’re suing a corporation, and a corporation is considered to be a citizen (for diversity purposes) wherever it has its principal place of business.  Suncourt Cemetery could be owned by a corporation that runs lots of cemeteries and has its principal place of business in, say, New Jersey.  Then it wouldn’t matter if all of the plaintiffs were from New York; in fact, that would be great.

Another possibility is that Foggy is actually representing a class action.  It’s certainly possible.  There are at least 15 plaintiffs and there could be a lot more.  In a class action the diversity rules are relaxed considerably.  Depending on the details of the case, which we don’t have, it can go as far as “minimal diversity,” which requires only a single plaintiff be from a different state than a single defendant.

Now that we’re more or less comfortably in federal court we can turn to the issue of how Nelson gets away with taking a soil sample with a backhoe.

III. You Got a Court Order for That Backhoe?

Federal Rule of Civil Procedure 34(a)(2) allows for parties to serve requests to “permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”  Suncourt Cemetery could oppose the request, but Foggy could then seek a court order compelling Suncourt to allow the sampling.  Since Foggy is holding up document on federal court letterhead, it seems like there has been a court order rather than a mere request.

And this makes sense because discovery happens after the complaint has been filed.  For the advanced students in the class: it probably also means the case has already survived the defendant’s motion to dismiss under 12(b)(1)  (for lack of jurisdiction) and 12(b)(6) (for failure to state a claim), which roughly correspond to sections II and I of this post, respectively.

IV. Conclusion

I have to admit, when I read the first page of this issue my gut reaction was that it was all wrong: Negligent cemetery caretaking? A state tort claim in the Southern District of New York brought by what appears to be a bunch of New Yorkers against a New York cemetery?  But surprisingly (to me, anyway) it all more or less hangs together, if a little tenuously.

In terms of writing and artwork, Daredevil continues to be great, and we recommend picking up #8 and Amazing Spider-Man #677, which contains the first half of this storyline.

Daredevil #1

Daredevil was recently relaunched with a new issue #1 (issue #2 comes out tomorrow).  The new series brings a more upbeat take on Matt Murdock, and importantly for us it also brings a new focus on Murdock and Foggy Nelson’s law practice.  Spoilers ahead:  Continue reading

Manhunter, Volume 5

First off we’d like to announce the winner of our giveaway of a copy of volumes 1-5 of the Marc Andreyko run of Manhunter, as described in our previous post in this series.  Thank you to everyone who entered.  We got a tremendous response from our readers for the giveaway, so we’ll definitely run another one soon.  Anyway, without further ado: congratulations to our winner: Michael Burstein!

Now, on to volume 5 of Manhunter.  The main story arc in this volume involves a multi-national pharmaceutical/biotech/medical device company, Vesetech, with a plant in El Paso, Texas.  Many of the workers at the plant are Mexican women who live in Ciudad Juárez across the border.  While investigating the disappearances of a large number of women in the area, Kate Spencer discovers that Vesetech was kidnapping the women and using them in unethical medical experiments.  After busting up the supervillain-led research team, Spencer announces at a press conference that she is leading a class action lawsuit against the company on behalf of the former employees.  This leads to a few questions.

I. Federal Labor Laws

Kate says that Vesetech was paying the women ‘pennies,’ suggesting a violation of minimum wage laws.  For violations of the federal minimum wage (the same as the minimum wage in Texas), employees can sue for both back wages and an equal amount as liquidated damages under 29 U.S.C. 216(b).  However, violations of the federal minimum wage law are frequently enforced by the Department of Labor’s Wage and Hour division, which is empowered to sue on the employee’s behalf.  If the Department of Labor steps in then that terminates the employee’s right to sue on their own behalf.  So there’s a very good chance that part of the suit could be dismissed.  But there would still be the injuries suffered by the women who were experimented on.

II. Class Actions and Federal Jurisdiction

Kate announces that she will represent the women in a class action lawsuit, but things aren’t that simple.  A class must be certified by a judge, and the plaintiffs in this case may not meet the requirements.  For simplicity we’ll assume that the case would be brought in federal court.  Bringing a case in federal court requires (among other things) that the court have subject matter jurisdiction.  That is, it must be the kind of case that the federal courts can address, since the federal courts are courts of limited jurisdiction.

In brief, federal courts can get subject matter jurisdiction three ways: the Arising Under clause, diversity of citizenship, and supplemental jurisdiction.  The Arising Under clause grants jurisdiction in cases involving a federal question.  Diversity of citizenship applies when no plaintiff is a citizen of the same state as any defendant and the amount in controversy is at least $75,000.  Supplemental jurisdiction allows state law issues to tag along when they are related to another claim or controversy that the court had jurisdiction over.

In this case, federal jurisdiction seems likely since the plaintiffs are all Mexican citizens while the defendant is a US corporation, giving a federal court jurisdiction under diversity of citizenship. (legal pedant note: it is broadly assumed that this is so, but the Supreme Court has indicated in dictum that a foreign plaintiff may not claim federal jurisdiction under diversity of citizenship.  Verlinden BV v. Central Bank of Nigeria, 461 U.S. 480, 492 (1983).  It is not completely clear what the answer is in a case like this, with foreign plaintiffs and a US defendant.)

There may also be federal question jurisdiction (e.g. if the women sue for wages and the Department of Labor doesn’t step in).

In any case, federal class actions are governed by Federal Rule of Civil Procedure 23.  There are several requirements, but the biggest issue here is probably commonality: are there “questions of law or fact common to the class?”  The problem is that there are at least two groups of plaintiffs: women who were paid below minimum wage and the women who were experimented on (or at least their estates).  Admittedly, members of the latter group may also be members of the former group, but the questions of law and fact are very different between the two groups.  It is possible that a federal court would consolidate the cases, but they would probably be brought as two separate suits.

But even that may not be enough.  Unless the women were subjected to at least broadly similar mistreatment at the hands of Vesetech’s scientists then a class action may not be the best way to resolve their claims.  A court could decide that the women’s injuries were too unique to be treated as a class.

III. The Measure of Damages

During the press conference Kate explains that data gleaned from Vesetech’s human experiments may have been used to develop a range of highly profitable and widely-used products.  Kate says that this is “fruit of the poisonous tree” (a rather terrible mis-use of a legal phrase).  Anyway, it is implied that this has something to do with the women’s case.  Ordinarily the women’s damages would be what it took to compensate them (or their estates) for their injuries, plus likely punitive damages of up to 10 times the compensatory damages.  See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that Due Process generally requires punitive damages be less than 10 times the compensatory damages).  The women would ordinarily not be entitled to any share of the ill-gotten gains derived from their suffering.

However, the equitable remedy of restitution may allow the women to recover some of those ill-gotten gains.  But as an equitable remedy restitution is discretionary, so a court may or may not impose it.

IV. Tort Claimants and Bankruptcy

The real bad news is that Vesetech is almost certainly going to be bankrupt in short order: all of its facilities around the world were raided, virtually every aspect of its business is suspect, and it is looking at massive criminal penalties.  What’s more, tort claims are general unsecured claims, aka “the back of the line” in bankruptcy.  So even if the women’s case is successful, they may ultimately receive nothing as secured creditors and the government take everything the corporation owns in liquidation.  Sad, but that’s the law for you.

That’s it for our series on this run of Manhunter.  Look for our next series on Batman: No Man’s Land!

Shapeshifting and Trial Testimony

A number of superheros and supervillains–Mystique, Amalgam, Everyman, etc.–have the ability to change shape into the appearance of other people. This is used variously for heroic purposes or nefarious deception, but what would the legal system need to do to account for the possibility of a shapeshifter impersonating a witness in a legal proceeding?

The implications are startling. A key witness could be replaced with a shapeshifter to introduce or conceal critical evidence at trial. Heck, one can imagine a supervillain making a decent living impersonating witnesses for a fee!

But surprisingly enough, this is something that the legal system is already pretty well equipped to deal with.

I. Verification

One can perhaps think of technical means that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheros might even find some side work this way, and enterprising inventors could too. But even aside from the potential cost and inconvenience, this is not something the court system would probably impose.

Why? Because juries are already tasked with evaluating the credibility of witnesses. No special care is taken to make sure that witnesses aren’t lying, so why should special care be taken to ensure that they are who they appear to be? Indeed, witnesses must already identify themselves, and we trust juries to tell if a witness is lying about their identity.  Perjury is also already a crime–and impersonating another to give testimony under oath is certainly perjury. So if we already trust juries to weigh the credibility of testimony, including the witness’s claimed identity, it would seem that the problem of shapechangers is an issue of degree rather than kind.

II. Cross-examination

The reason that the legal system puts such faith in juries and takes so few preventive steps to prevent perjury is the system’s reliance on cross-examination.

Cross-examination is the part in a trial where a witness is questioned by the opposing attorney, a process which witnesses universally report is No Fun At All. The attorney is deliberately attempting to catch and exploit inconsistencies, however minor, in the witness’s testimony, and even an entirely truthful, honest witness can be made to appear pretty silly by a skilled trial lawyer. A good discussion of how this works and the ways in which a cross-examiner can accomplish his or her objectives can be found in the Ten Commandments of Cross-Examination.

The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to be confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable, that’s basically just too damn bad.

This is because testifying in court is different from having a discussion with friends over a few beers; there are stringent rules for what can be said and what cannot be said, and the attorney not doing the questioning has every interest in seeing that they are enforced. Remember how in all those law shows attorneys are always yelling “Objection!” That’s because they’re trying to draw the judge’s attention to what they believe (or would like the judge to believe) is a violation of the rules of evidence (although in the real world the reason for the objection also has to be given).

And again, even an honest witness can be tripped up by a skilled attorney. How much more a witness who does not actually have first-hand knowledge of the testimony being offered? Even a shapeshifting telepath is going to have a really hard time slipping one past an attorney who knows what he’s about. By the time a witness appears on the stand, particularly in a case of any significance, both attorneys pretty much know what their respective witnesses have to say. They will all have given extensive depositions, and the trial process is less a revelation of new evidence than it is a formal way of entering that evidence into the record. Any deviation from a deposition is likely to be noticed by the examining attorney and immediately pounced on. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the gig is up: either the doppelgänger will be revealed, or the damage to the case intended by the shapeshifter will be avoided.

At this point, other laws come in to play. Subornation of perjury is itself a crime, so a party or attorney that solicited the shapeshifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Rule 37 permits a judge to impose a variety of sanctions on a party that does not cooperate with the discovery process, up to and including both contempt of court and ruling that the record treat the issue in question as conclusively established for the opposing party.  The attorney may also be sanctioned directly under Rule 11.

III. Conclusion

So here it would seem that the legal system is already pretty well set up to deal with the possibility of shapeshifters in court.

Superheros and alter-egos

Bruce Wayne is Batman. Clark Kent is Superman. Tony Stark is Ironman. Peter Parker is Spiderman.

And so it goes. Throughout the various multiverses, numerous superheroes have maintained alter-egos, either to protect their “normal” lives and loved ones or to disguise their true natures. Sometimes both.

Either way, the idea of an alter-ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

Legally, there is no reason Jekyll could not do this. The fee simple gives a property owner the right to dispose of his property in any legal way that he sees fit. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter-ego which led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e. if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

So the problem is not only in the creation of an alter-ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

I. Legal Status

The relationship between one’s “mundane” and “masked” identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g. Bruce Wayne becoming Batman, things are fairly straightforward, as one already has a full-fledged legal identity. But simply creating a new person out of whole cloth, as one would need to do if one were creating a new cover identity or faking one’s own death, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, undercover operations, etc., but there are two main facts about this which present problems for our superheros. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e. they are not intended to fully or permanently replace the original identity.

The basic problem then is that to create a new identity without government authorization requires the commission of a number of felonies, potentially including making false immigration statements (18 U.S.C. 1015), identification document fraud (18 U.S.C. 1028), perjury (18 U.S.C. 1621) and numerous related offenses under state law. And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification which a superhero wanting to create a new mundane identity for his masked persona would need to forge. Creating successive false identities all but requires one to engage in illegal activities. So much for being a law abiding citizen.

All of these may seem trivial, but Al Capone was eventually brought down, not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion. And if the illegality is not problem enough in its own right, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order.

II. Money Laundering

Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy: the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even cash transactions are no solution, as transactions over $10,000 must be reported to regulators and paying for anything more than $500 with cash will be reported as suspicious. So while the money being “dirty” in some sense, i.e. representing the proceeds of or being used for some unlawful activity (18 U.S.C. 1956) for disguising the origin and ownership of funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort which could easily trigger an IRS audit. As the Joker observed at one point, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” So again, it seems that our some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law, but even breaking the law in this way is no guarantee of success.

III. Evidence and the Sixth Amendment

Unfortunately, unless a hero plans to kill every villain with whom they come into conflict, bringing said villains to justice is actually made a lot more difficult the more a masked hero is involved in the case. It turns out that wearing a particular costume or uniform, which is how superheros and villains are normally identified in comic books, does not actually count as evidence that the person wearing them is, in fact, the same person all the time.

This is significant, because the Confrontation Clause of the Sixth Amendment reads “[I]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” The goal of the Confrontation Clause, as stated by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), is to “preserve reliability of evidence” by establishing procedures so that “reliability [may] be assessed in a particular manner: by testing in the crucible of cross-examination.”

A witness whose identity cannot be definitively established would likely be useless as a witness. Courts and legislatures have made exceptions to the Confrontation Clause for situations like child witnesses against their abusers, but these are mostly limited to permitting the child, visible to the court, to testify via closed-circuit TV so that they do not have to see the accuser. There is no precedent to suggest that an essentially anonymous person or a person operating under a known or obvious alias would be permitted to testify in court without revealing their actual legal identity. A clever defense attorney could easily point out that we don’t even let witnesses in the witness protection program testify in open court while disguised; why should we let a superhero?

The Sixth Amendment aside, it is not clear that the Federal Rules of Evidence would permit a masked person to testify at all. Federal Rule of Evidence 602 reads, in part, as follows:”A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It will be much more difficult to prove that a masked person was a witness to a particular event when there may be no evidence that the masked person on the stand is the same masked person who allegedly saw what he claims to have seen. It is common practice for attorneys to ask a few simple questions such as name, address, age, etc. to establish a witness’ identity before proceeding to elicit testimony. Such questions would be impractical for a masked person to answer without revealing their identity, and a refusal to do that might well cause a judge to exclude their testimony entirely. Again, we don’t let traditional witnesses disguise themselves, and there isn’t any obvious legal reason that a superhero should be an exception to that rule. As the FRE apply to both criminal and civil cases, so this could be a problem even when the Sixth Amendment does not apply. Something like Peter Parker taking pictures of Spiderman’s exploits might help, but again, someone needs to be able to testify as to the veracity of those pictures, and that would mean testifying about their origin under oath.

This is a legal problem inherent to the maintenance of an alter-ego of any sort. Even a person who starts life as a mundane and then dons a mask to fight crime will run into this.

IV. Conclusion

So creating a superhero creating an alter-ego is a bit more legally complicated than it might seem. In addition to the problems of actually creating one in the first place, the logistics of maintaining the persona are significant, especially when trying to do so legally. But even the simplest alter-ego, the normal person who occasionally fights crime as a masked crusader, will run into legal problems if they are called to testify to what they have seen.

The Multiverse and Res Judicata

In an infinite number of parallel universes, parallel versions of a supervillain will commit or attempt the same crime simultaneously only to be foiled by parallel versions of the same superhero.  Is there a good argument for trying the villain once and applying the verdict interdimensionally?  I think so, and in this post we consider the application of the res judicata doctrines of issue preclusion and claim preclusion to the Multiverse.

Many comic book series do not occur in a single, isolated universe but rather in a host of parallel universes, alternate dimensions, and Bizarro Worlds collectively referred to as the Multiverse.  Crossovers aside, both DC and Marvel series occur within their own respective multiverses.  For the sake of reference, the various parallel universes in these multiverses are numbered.  For example, the ‘normal’ world is Earth-616 in the Marvel Multiverse and Earth-0 or New Earth in the DC Multiverse.  There are an infinite number of such parallel worlds, most differing only in comparatively slight respects (e.g. the victory of the Axis powers in Earth-10; all of history up until that point was essentially the same).  So that’s the Multiverse.  On to the law.

Ordinarily, courts only like to consider a given issue or claim once.  This is done out of consideration of judicial efficiency, cost reduction, and finality.  The Supreme Court recently summarized issue preclusion thusly: “once a court has decided an issue of fact or law necessary to its judgment, that decision…preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case.” San Remo Hotel v. San Francisco, 545 U.S. 323, 336 n.16 (2005).

The Court summarized the distinction between the two doctrines in another case: “Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001).  The Court has also applied claim preclusion to criminal cases. United States v. Oppenheimer, 242 U.S. 85 (1916).

So what does this have to do with the Multiverse?  Consider Lex Luthor, plotting a dastardly scheme to stop Superman’s meddling once and for all.  As is so often the case, his plot will be foiled, and he will be brought to justice.  But Lex would have attempted the same plot in an infinite number of parallel worlds which differed only in ways that were immaterial to the plot and its prevention.  In the interests of cost savings, judicial efficiency, and finality, should the various Lex Luthors not be tried once, simultaneously, for all of them, both for criminal charges and civil claims brought against them?

The intuitive answer would seem to be yes, but there is a complication.  Which jurisdiction should be favored?  Or perhaps the better question is which jurisdiction should be forced into it, since that jurisdiction alone will bear the cost of the proceedings; it is not in any jurisdiction’s interest to volunteer.  But given the potentially infinite number of candidate jurisdictions, a random choice doesn’t make sense either: how can you fairly pick a number between 0 and infinity?

I think the solution is an Interdimensional Court of Justice, which would hear significant cases that would be too onerous for any one world to bear the cost of hosting or in which there would be a large efficiency gain in hearing the case only once.  A world that wished to have its version of a supervillain included in a case would chip in to help fund the IdCJ.  Since there could theoretically be an infinite number of such worlds, each world would only need to contribute an infinitesimally small amount.  Of course, coordination might be a problem.  In practice however, there only seem to be a few dozen parallel universes of any significance in the DC and Marvel multiverses, which makes the coordination problem much more manageable.