Category Archives: constitutional law

Law and the Multiverse Retcon #11

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

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

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

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

Mailbag Roundup

Teaching and research have kept me very busy this semester, but I wanted to present a roundup of questions I’ve received and answered via email recently. There are lots of spoilers below, so be warned.

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Law and the Multiverse Retcon #7: Book Edition

This is the seventh post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or in this case the book The Law of Superheroes as well as some older posts about drafting superheroes.

The impetus for this Retcon came from a letter (that’s right, a real, physical letter!) I received from a doctor in Tennessee.  She wrote:

You doubt that there could be a superhero draft, because of the intrinsic unfairness.  However, there was a specific doctors’ draft during World War II, Vietnam, etc., which could serve as a model for [conscripting] mutants and resident aliens.

Physicians could be and were drafted despite being middle-aged, 4F (the thought being that if you could get to your office, you could serve), or having already served.

Although I attended medical school soon after the institution of the volunteer army, this was still a source of fearful discussion amongst my male classmates and professors.

The doctor draft was indeed a real thing, and it extended well into peace time.  It was expressly held constitutional by the Fifth Circuit in Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954):

Neither is appellant entitled to any relief under the Fifth Amendment because, unlike the Fourteenth Amendment, the Fifth contains no equal protection clause. In order to invoke the Fifth Amendment to secure relief against inequality, appellant must show that the inequality practiced against him has been so flagrant as to amount to a denial of due process, and this he has not done.

The Act extends to all doctors and dentists under the age of 50, and to ‘allied specialist categories’, which by the express terms of the Act includes, but is not limited to, veterinarians, optometrists, pharmacists and osteopaths, imposing upon them all alike the obligation of military service when called by the President under the terms of the Act. In our opinion such a classification satisfies the requirements of the Fifth Amendment.

Bertelsen, 213 F.2d at 277.  The court also denied relief under the Thirteenth Amendment prohibition on involuntary servitude, as is typical in draft cases.

However, it is arguable that a draft of superpowered individuals could be such a flagrant inequality as to violate Fifth Amendment due process.  This would be especially likely if Congress picked specific superpowered individuals rather than superpowered individuals as a class.

In fairness to us, however, I don’t think we actually concluded that a superhero draft would be unlikely to pass constitutional muster.  To quote from The Law of Superheroes:

… Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.

But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, the courts would most likely not object.

So although the doctor draft and the associated cases are a notable gap in our research, I don’t think our correspondent disagrees with us as much as it might appear.  Nonetheless, I felt the letter was thoughtful and deserved the full Retcon treatment.

X-Men: Days of Future Past and Thoughts on Due Process

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote guest posts on Defending Loki and Captain America: The Winter Soldier.

The Most Important Movie of the Year?

Recently, US-authorized drone strikes killed several American citizens accused of being a threat to the country based on their terrorist affiliations and unapologetic rhetoric opposing US policy.

Oh, wait . . . that was the beginning of X-Men: Days of Future Past.

You probably already know that this article will have multiple spoilers, so if you haven’t yet seen the latest iteration of Marvel’s X-Men, you should go see it soon. Then come back and tell me in the comments whether you believe in my assessment of this film or not.

What’s the Big Deal?

If you have seen Days of Future Past already, did you see what I saw? I will admit it is somewhat hidden, but only because we are trained to ignore it, since it just gets in the way.

I am talking about due process—due process, as in the opposite of capricious verdicts and judgments based on prejudice, fear, and political expediency; as in that little right we inherited from our Founding Fathers, who had experienced the lack of due process first hand and decided the Constitution wasn’t complete until we included it in the Bill of Rights.

You might disagree with me when I say the framers of the Constitution had the events of X-Men: Days of Future Past in mind when they insisted that due process be inviolate, so let’s review the instances in the movie and then see if we face the same issues today.

First Class 

Everything really started at the end of X-Men: First Class when, in a mercurial moment, mutants went from heroes to goats on the beach in Cuba, incurring the wrath of the instantly allied US and Soviet fleets. The Soviets would obviously have no problem firing on a small contingent of Americans, but why did the generals calling the shots in Washington order the execution of US citizens without due process? And why were the American Sailors, so soon after World War II, willing to “just follow orders,” especially after hearing Agent MacTaggert screaming over the com that the situation was contained?

I guess their justification for such an attack was fear; fear based on ignorance and concern for safety. Which, by the way, is the same tactic currently exercised by law enforcement across the country. In fact, according to the Bureau of Justice Statistics, police kill 400 – 500 innocent people each year out of fear for their own safety, significantly more than the 33 officers killed by firearms each year in the line of duty.

A 2012 example of irrational fear in Cleveland, not unlike the attack levied against the mutants on the beach, involved a man and woman whose car backfired. The retaliation by police to the possible gunfire from the car resulted in a force of 60 police cars pursuing the now frightened couple and ended with 115 officers firing 140 bullets into the car in less than 30 seconds. The unarmed couple was pronounced dead on the scene.

Kennedy Assassination

Speaking of no due process, although the details were sketchy on how the US government accused Magneto of complicity in the JFK assassination, it is clear that government suspicion that Magneto manipulated the “magic bullet” was justification for his incarceration.

Of course, in 1963 Erik Lehnsherr’s incarceration was illegal, but now after several rounds in congress and many court challenges, the President on December 26, 2013 signed into law that the government can arrest anyone on suspicion only and detain them indefinitely without trial. Welcome to Magneto’s world.

Not that I subscribe to the rhetoric of Magneto, but you have to admit that being thrown in solitary without due process, tends to sap any loyalty one might have for King and country; whether you are a German Jew or a US Citizen of the wrong color, species, or ideology.

Vigilante Justice

One element of vigilante justice that makes it not only illegal but immoral as well is that the vigilante, lynch mob, or angry villagers with torches and pitch forks don’t feel bound by due process. Their aim is to dispense justice, quickly—right or wrong. What drives the vigilante is fear that justice won’t happen without them taking over.

Vigilante justice in Detroit occurred in April of this year when a man hit a 10-year old boy with his truck. The driver stopped to help but was immediately beaten into a coma in retaliation even though surveillance cameras would later show the boy ran in front of the oncoming truck leaving no time to stop. Concern for due process would have allowed the mob to see that the man was not at fault after a thorough investigation.

But in another universe, maybe the boy was a mutant, and his fellow mutants felt that there would be no justice unless they acted on their own. Thus was the mindset of Mystique as she set about finding and executing Trask. It all seemed clear what she had to do since nobody else was willing to stop Trask from continuing with his plans against mutants. Due process wasn’t on her mind, and as it usually does, her vigilante justice backfired.

Due Process and Personhood

Without getting into a history lesson on civil rights in America, one doctrine that kept slaves and minority races under the boot of the majority was the belief that they didn’t fully qualify as human. The majority claimed belief in rule of law, due process, and justice, yet denied an equal share of this philosophy to those deemed as “less human.” This belief also fueled the Holocaust in Germany, where enslavement and execution of “untermenschen” or “subhumans” was ok, to the tune of eleven million dead.

Trask was quick to play on this flaw in humanity when he was able to convince the powers that were, that mutants, by virtue of their differences also didn’t deserve consideration as humans and should be targeted as enemies. His deep seated prejudice was made plain when, suspecting a Vietnamese general to be a mutant, he said to others in the room driven to panic, “Don’t shoot it.”

Denying Due Process 

I dare say, in a classroom most students would see the injustice and immorality of denying human rights to any individual based on race. Maybe racist attitudes are fading away in our culture. Let’s hope so. But my discussion has not been about the obvious ethnic lessons of X-Men: Days of Future Past. I have been talking about due process and why we should be aware of its importance.

To whom are we willing to deny due process today? Do you think we should afford all people the right of presumed innocence? Or are some crimes so heinous that it is hard to restrain us from rushing to judgment and bypassing due process? Unfortunately, I have seen instances where many people feel that for some crimes due process isn’t important and should be suspended. Let me toss around a few words. Let’s see what your emotional response is to arresting:

  • Drunk drivers;
  • Terrorists;
  • Child molesters;
  • Rapists;
  • Drug dealers

A police officer arrests and handcuffs a man.

You have the right to . . . oh never mind, just get in the car @$&hole.

The question is, are we willing to trust our system of justice when it comes to these types of crimes? Or do we treat these individuals as “mutants . . .” to be feared and condemned as guilty before they are even tried? In the case of a drunk driving arrest, you are presumed guilty. Your license is suspended and you are given a notice of suspension. Police officers in these cases are judge, jury, and executioner. It is a very efficient system.

However, putting justice in the hands of the people can be slow. It was a risky move by the founding fathers. Many feel that people show too much mercy and not enough justice. They fight for mandatory sentences, new laws, and regulations that take authority away from the judge and jury. They allow exceptions to every right we have in an attempt to control our “unruly” system.

I like what Charles Xavier said to Raven at the end of X-Men, “I have been trying to control you since the day we met and look where that’s got us . . . I have faith in you Raven.” Perhaps we should have faith in each other as well.

Due process isn’t perfect, but it is fair. It is foundational to our freedom. In light of the alternative, it is a pretty big deal. Is it significant enough to suggest that X-Men: Days of Future Past is the most important movie of the year?

Ask me again in ten years.

Nonhuman Rights in the News

Recently the Nonhuman Rights Project filed three suits in New York seeking to have chimpanzees recognized as legal persons, specifically for purposes of the writ of habeas corpus.  All three suits have been dismissed, which the NhRP expected and will appeal.

It’s interesting that the cases were filed in New York state court because the most recent major case in this area (Cetacean Community v. Bush) was filed in the Hawaiian federal court and appealed to the 9th Circuit.  The strategy here seems to be to focus on habeas corpus rights rather than rights under the Endangered Species Act and related laws.  New York seems to have been chosen because of its automatic right of appeal in habeas cases and because its Pet Trust Act allows animals to be the beneficiary of a trust, which the NhRP argues is evidence that the law already treats animals as legal persons in at least one way.

Now, we aren’t here to discuss the ethical, political, or scientific merits of these cases.  The real question is, “how does this affect Superman (and all the other intelligent non-humans in the comics)?”

As we discussed in our book, the law currently does not recognize any non-human animal as a legal person, and so far these cases affirm that.  The NhRP provided copies of the oral hearing transcript in one case and the judge’s decision in another.  From the latter we can see that the judge held (via handwritten note) that the habeas statute “applies to persons, therefore habeas corpus relief does not lie.”  Not a lot to work with there.

We get a much more detailed discussion of the arguments from the hearing transcript.  A major part of the NhRP’s argument focuses on chimpanzees’ cognitive sophistication and autonomy.  This is kind of a fraught argument because it relies on some difficult line-drawing.  Obviously not all chimpanzees are cognitively sophisticated: no doubt some have mental disabilities.  So then the argument must be made on the basis that chimpanzees “in general” or “on average” are sufficiently cognitively sophisticated or autonomous and then somehow as a result the rest of the chimpanzees should likewise be treated as legal persons.

This is much the same way as it is with human.  We (mostly) don’t deny human beings legal rights simply because of their lack of cognitive ability.  Membership in the class of human beings is sufficient.  History has demonstrated that whenever we try to draw lines things get really ugly, so we’ve mostly stopped doing so.

In this case the tricky bit is establishing that a) the chimpanzees involved in these lawsuits are cognitively sophisticated and autonomous enough and that b) all chimpanzees should be given the same legal status rather than creating some kind of cognitive test.

So what does this mean for Kryptonians, Skrulls, intelligent robots, and all the rest?  So far it means a continuation of the status quo.  Depending on how the cases turn out, it likely means that each species (and possibly even each individual) would have to have its legal personhood established on a case by case basis.  Just as the NhRP’s cases only focus on chimpanzees and explicitly do not seek personhood for bonobos, gorillas, and other apes (much less dolphins, African Grey parrots, or other notably intelligent animals), if the Vision sued to be recognized as a legal person that wouldn’t necessarily mean anything for the Skrulls or even, say, Ultron.

We look forward to seeing how these cases play out, although it will likely be at least several months before there are further developments.

Pacific Rim

If you take legendary anime franchise Neon Genesis Evangelion and strip out the pseudo-oedipal pop psychology, crushing angst, fan service, crypto-Judeo-Christian imagery, and enormously surrealistic endings, you can get a pretty good idea of what Pacific Rim is like: ten-story mecha beating up gigantic biological monsters. Good times.

For our purposes, there is a legal issue raised by the movie. We’re going to just sort of hand-wave the Jaeger project as a necessary plot device. But the concept of the “Life Wall,” a massive coastal wall combined with a multi-hundred kilometer safe zone around the Pacific coastline does raise an interesting question about eminent domain and Fifth Amendment takings. Continue reading

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

More Guest Blogging

The guest blogging at The Volokh Conspiracy continues with The Adventure of the Fruit of the Poisonous Tree, which is sort of like Is Batman a State Actor? except for Sherlock Holmes in Elementary.

Iron Man 3 Questions

We’re going to start our coverage of Iron Man 3 with some questions we received almost two weeks ago from Heiki, who saw the movie at a local premiere in Europe.  We had to wait to see it this weekend, but it was well worth it.  If you haven’t seen it yet, you should.  It’s a great movie.  There are some fairly serious spoilers below, though.

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Law and the Multiverse Online CLE Programs

For many attorneys it will soon be annual CLE reporting season.  If you need CLE credits, we may be able to help.  We have partnered with Thomson West in the past to produce four online, on-demand programs with CLE credit available in most states:

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.