Category Archives: constitutional law

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.

Continue reading

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.

NYC Councilman Proposes…A Ban on Superheroes?

We don’t normally talk about real-world issues, but this was too good to pass up.   A New York City councilman has recently introduced bills to ban costumed characters in the city, or at least impose tight regulations on them. The bills are aimed at what’s apparently becoming a problem, particularly in Times Square. There was “Anti-Semitic Elmo,” and now someone dressed as “Cookie Monster” has been arrested for assaulting a toddler.  We should point out that the people involved were not related in any way to Sesame Street; they buy or make costumes and wander around Times Square trying to get paid for photographs with people.

One bill would ban costumed characters outright.  The other would require registration and the carrying of a permission slip indicating that the character was licensed from the intellectual property owner.

But does Councilman Vallone really want to ban Spider-Man? (By which we mean an actual web-slinging superhero, not someone dressed as the fictional character.  Obviously he means to ban the latter.) Because something like this would probably interfere with him as much as it would interfere with costumed panhandlers. As a person in a costume, Spider-Man would be subject to a ban if it were passed. And though he would certainly be able to show that he had permission from the creator of his character for the purposes of the regulatory proposal, he’d still be subject to arrest unless Peter Parker registered, which kind of defeats the point of the costume.

Unlike some of the other laws we’ve discussed (The Keene Act from Watchmen, the SHRA from Marvel’s Civil War), this is a local government passing the regulation, so it starts out from a better position than the federal government does in this area. New York City participates in New York State’s general police power and has the power to regulate anything that the federal and state Constitutions don’t say that it can’t.

But there are still problems here. The ban proposal would simply prevent people from appearing in public wearing costumes. As the article points out, there are First Amendment problems with that. Wearing costumes is generally considered to be protected expressive conduct, and the government probably can’t just ban it outright. But they can institute content-neutral restrictions on the time, place, and manner of such conduct, such as requiring registration or banning the wearing of costumes while peddling or panhandling. New York City already has so-called “mask laws” in effect, which restrict people from appearing in groups wearing masks, and many jurisdictions have laws which penalize wearing masks while committing other crimes.

We don’t know if this will hold up.  At the time of this writing the text of the bills are not available on the NYC Council’s legislation site, so all we have to go on are second-hand descriptions.  The bills have certainly not been passed into law, and they may yet be significantly amended.  And whether or not either bill is a good idea is definitely a political question that is beyond the scope of this blog (and its comments section).  But it is interesting to see life imitating art, even if the danger posed by these “freelance costumed performers” is quite a bit different from the dangers posed by masked comic book characters.

WonderCon Follow-Up Questions

After our WonderCon panel discussion and mock trial we had the obligatory Q&A session.  Unfortunately we ran out of time.  I wanted to take this opportunity to address one question we didn’t have time for and a question that we later received via email.  If you were at the panel and had a question for us, please email us at and

I. The First Thing We Do, Let’s Eat All the Lawyers

The last question we got from the audience was, in essence, “If all the lawyers die in the zombie apocalypse and then humans regain control, how can the courts function?”

This is a fair question, but the courts aren’t—strictly speaking—as dependent on lawyers as it might seem at first glance.  In the federal system, for example, there’s no requirement that judges be lawyers or have any legal education.  Historically federal judges have all been lawyers or at least been legally trained, but it’s not technically a requirement of the job.  So vacant judgeships could be filled from the ranks of non-attorneys.

That’s the judges out of the way.  What about the parties and their attorneys?

In a civil case the parties can represent themselves, if they are competent individuals.  Since there is no right to an attorney in a civil case, however, the incompetent, corporations, and governments are out of luck.  But there may be a solution, as we shall see in a moment.

In a criminal case there is a right to an attorney, and although that right is not absolute (e.g. the state can require proof of indigence), it does exist.  And of course the state itself must be represented by an attorney.  So something has to give.  And the answer is that the states would simply repeal, modify, or ignore their unauthorized practice of law statutes until new lawyers could be trained.  At the very least the prosecutor isn’t going to prosecute himself or herself for unauthorized practice of law, and presumably he or she would extend the same courtesy to the public defender’s office.

Without the institutional knowledge of a professional class of attorneys, the post-apocalyptic legal system would probably be pretty rough around the edges, but it would be functional.  Goodness knows enough books have been written about the law to reconstitute the U.S. legal system a hundred times over, and as any third year law student will tell you, it really only takes two years (i.e. 8-10 classes) to get the basic idea.

II. Zombie Hunting Preserves

During the panel we noted that even if zombies were considered legally dead, it might not always be legal to kill them.  For example, gratuitous mutilation of a zombie might fall under abuse of a corpse, depending on state law.  And shooting an unthreatening zombie might run afoul of laws against hunting out of season or unlawful discharge of a firearm.  We mentioned, however, that these last two might not apply if zombies had been declared a pest species.  That led to this question that we received by email from Lance after the panel:

You mentioned in the panel discussion that the state could deem zombies as pests. If so would there be ramifications to an individual for “hoarding” them for sport to let hunters hunt them on a private reserve granted that they signed a waiver of liability?

This is a good question with some hidden complexities.  Ordinarily, designating an animal a pest species would only be an exception to laws prohibiting hunting out of season, hunting in city limits, etc.  It wouldn’t typically affect abuse of a corpse, which would be the major issue with rounding up (admittedly reanimated) dead bodies and shooting them for sport.  But on the other hand, states make abuse of corpse laws and so they could, theoretically, pass exceptions creating permits for zombie hunting preserves.

But would that be enough?  The next of kin have what is often described as a “quasi-property” right in the dead body, in order to see to its proper disposition.  It is an interesting question whether that interest is a constitutional right (at some level) or whether it is an interest created by the state.  If it is an interest created by the state, then the state can take it away.  But if it is a constitutional right, then it is an inherent right.

It turns out that there are conflicting cases on this question.  In Whaley v. County of Tuscola, the Sixth Circuit held that “the next of kin may bring a constitutional claim under the Due Process Clause” of the Fourteenth Amendment because the County had removed the eyeballs of the deceased without permission of the next of kin.  58 F.3d 1111 (6th Cir. 1995).  But the court’s holding that there was a constitutionally protected right to possess and prevent the mutilation of the deceased’s body rested on the fact that the state had created a property right in the body.  Presumably without that underlying right there would be no constitutional cause of action.

Other courts have rejected any constitutional dimension to the issue at all.  For example, in Dampier v. Wayne County, the Michigan Court of Appeals held that “the common-law right of burial of a deceased person without mutilation, discussed earlier, is not of constitutional dimension.” 233 Mich. App. 714 (1999).

So in theory it might be possible for the government to strip away any right for the next of kin to take possession of an unmutilated body and see to its disposition. A challenge to this might be made on First Amendment grounds, since so many religions have burial or funeral requirements, but unlike the Establishment Clause, it is difficult to strike down a law under the Free Exercise Clause: “[a] law that is [religiously] neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice”. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).  A law stripping away any rights that the next of kin have in dead bodies as a way of dealing with the spread of a zombie plague would probably be religiously neutral and of general applicability.

So, what started out as a question about declaring zombies a pest ended up at the First Amendment and religious freedom. The short version is: just calling zombies a pest species probably wouldn’t be enough, but a state could probably theoretically legalize zombie hunting preserves if a) zombies were considered legally dead b) the state was willing to rewrite a lot of laws in the process.

Y: The Last Man

Y: The Last Man is the 2002-08 DC series written by Brian K. Vaughan, who also wrote Marvel’s Runaways, which we’ll be coming to presently. The premise is that, in the first issue, something happens (Vaughan is cagey about exactly what) which kills everything with a Y chromosome except the main character Yorick Brown and his pet monkey, Ampersand. Needless to say, this causes society to basically collapse right away. Horrendous traffic accidents (including planes and trains), utility failures, etc. Society is never going to be the same. This is bad for this blog, because we try to limit our analysis to stories that are easily analyzed under the current legal system, and it’s pretty clear from the first few issues that laws are going to change, and even if the legal system is restored there’s going to be a significant period of discontinuity.

But those first few issues do contain some really great constitutional drama about elected officials who die while in office. The first ten issues are in hardcover, but most of what we’ll be talking about is in the first trade. Continue reading

Silence & Co.: Money Is Power

Earlier this month, I was fortunate enough to receive an advance copy of Silence & Co.: Money Is Power from its author, Gur Benschemesh. This is his first graphic novel, but the artist (Ron Randall) and letterer (John Workman) both have a long list of titles to their name, many with DC and Marvel. Silence is the story of Alexander Maranzano, the illegitimate but acknowledged youngest son of a major New York crime boss. After getting out of the Marines (for reasons which turn out to be important), he starts working as a hit man for the family. It’s a complete work in three acts, it avoids many of the common pitfalls in crime graphic novels, and it’s got one of the most realistic takes on the process of surveillance I’ve seen so far. Silence is scheduled to hit stores this May, but we’re taking an advance look at its handling of legal issues now. Continue reading