Category Archives: contracts

Revere: Revolution in Silver II

Posted on October 29, 2012 by | 8 comments

Earlier, we looked at some of the general legal and historical issues with Revere: Revolution in Silver. Today, we’re looking at one particular legal problem: breach of the promise to marry. In the story, a young woman finds herself arranged to be married to a young man. The match was set up by their respective families, but the man is far more interested in the marriage than the woman. After a traumatic incident, the young woman refuses to go through with it. The young man is understandably upset, but his parents are aghast. They had been counting on the woman’s family business connections, which would have stayed with her after the marriage. The man remarks that, as she’s now broken her promise to marry, he can recover her business as damages.

Is that really how it works? Previously, we’ve looked at void and voidable marriages, and interspecies marriage, but now we’re going to look specifically at the tort of breach of promise. Continue reading →

8 Comments

Posted in contracts, family law

Reaper and Deals with the Devil

Posted on June 8, 2012 by | 26 comments

We’ve talked about contracts with the devil on Law and the Multiverse before, in the context of the Ghost Rider movie.  Recently I’ve been catching up on the (sadly cancelled) TV show Reaper (available on DVD and via Netflix), which has the benefit of being considerably better than Ghost Rider was, but on the other hand it lacks Sam Elliott.

Anyway, Reaper‘s protagonist, Sam Oliver, is tasked by the Devil with capturing souls who have escaped from hell, most of whom have inexplicably gained supernatural powers related to their earthly sins.  In some cases the souls were people who had sold their souls to the Devil.  Normally this is done with a written contract, which we get glimpses of at various points in the show, but in one episode the Devil foolishly only made a verbal agreement with a mortal, Gary, and Sam is asked to get Gary’s signature on a written contract.  This leads to a couple of interesting legal issues.

(Note: We’re assuming that the Devil follows something close to common law contract law, as is typical in English and American Faustian bargain situations.)

I. Modification of Contracts

But wait, if the Devil already has a verbal agreement with Gary, why does he need a written contract?  If he wants to add new terms to the deal that weren’t covered in the verbal agreement (which seems likely given the size of the written contracts), then the Devil may also have to support that modification with additional consideration (i.e. something of value promised by the Devil).  According to the Restatement (Second) of Contracts:

A promise modifying a duty under a contract not fully performed on either side is binding
(a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.

Given the ‘gotcha’ nature of contracts with the Devil, we’d say subsection (a) doesn’t apply, since it’s highly unlikely that the new terms are fair and equitable.  Subsection (c) is basically a reference to promissory estoppel and wouldn’t seem to apply here, either.

It’s an interesting question whether subsection (b) applies, however.  It’s a reference to the Uniform Commercial Code’s rule that additional consideration is not required to modify a contract for the sale of goods.  Is the sale of a soul a sale of goods?  According to UCC § 2-103(k), “‘Goods’ means all things that are movable at the time of identification to a contract for sale.”  Is a soul movable at the time of the contract?  Maybe not, since (in the Reaper universe) the soul is attached to the body until death, at which point the soul either goes to heaven or hell.  On the other hand, the term also includes ‘future goods,’ but it isn’t clear to me that a soul would qualify, since it already exists, it just isn’t movable.

But let’s assume the Devil (and Gary) can find some worthwhile bit of new consideration in order to justify the modification, or that the requirement doesn’t apply.  Is there really a need for a written contract in the first place?  Couldn’t they modify the contract verbally? Is the original verbal contract even valid? It depends.

II. Signed Contracts and the Statute of Frauds

In general contracts do not have to be in writing.  The only fundamental requirements are an offer, acceptance of that offer, and consideration.  However, it was long ago recognized that some contracts deal with such important rights (e.g. ownership of land), that they really need to be written down.  And so the Statute of Frauds was created in England way back in 1677, and similar laws exist in most jurisdictions.  The exact terms vary from statute to statute, but two common terms are relevant here.  The first is that contracts involving the sale of goods above a certain value must be in writing.  The second is that contracts that cannot be performed within one year must be in writing.

It’s hard to say how much a soul is worth, and of course there’s the issue of whether it’s a sale of goods in the first place.  But in Gary’s case he sold his soul for material wealth far in excess of the minimum required by the Statute of Frauds, so as long as a soul is a ‘good,’ then the Statute of Frauds might be triggered.

As for the one year exception: it depends on the term.  Someone who made a deal to live for at least one more year might trigger it, or someone who made a deal for a million dollars a year every year for twenty years.  But most deals with the Devil seem to be wrapped up pretty quickly, and Gary’s was no exception.  In fact, the Devil even contemplates having Gary killed in order to cheat him out of an opportunity to repent.

But even if the Statute of Frauds is triggered, Gary might have painted himself into a corner by accepting the Devil’s performance of his end of the bargain (i.e. the delivery of at least some of the material wealth).  Acceptance of partial performance can prevent a party from claiming the Statute of Frauds as a defense.  See, e.g., Railan v. Katyal, 766 A.2d 998, 1007-08 (D.C. Ct. App. 2001).  So in this case at least, the contract did not need to be in writing as long as the Devil was satisfied with the terms of the verbal agreement.  The Devil is correct, however, that proving the existence and terms of the verbal agreement can be difficult.

III. Aliases

At one point Gary signs the contract, but he signs an alias (‘Jim Fartington’).  Gary claims that this is not binding against him, since that’s not his name.  In fact, there is no particular requirement that a signature be one’s legal name, much less written in cursive or the like.  Instead, a signature is just a physical record of the intent to make a contract.  “The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” Restatement (Second) of Contracts § 134 (emphasis added).  So when Gary signed the contract, he did so with the apparent intention of authenticating the signature as his own.  Thus, he may well be bound by the contract.

IV. Conclusion

Reaper is a great show, and it’s a shame it was canceled.  Despite the plot revolving around contracts with the Devil, there aren’t too many legal issues, but this episode raised some great contract law issues that we don’t get to talk about on the blog very often.  In this case, the Devil probably actually had Gary dead to rights.  I guess the Devil should have consulted an attorney, which you’d think would be easy for him to arrange.

26 Comments

Posted in contracts, television

Damage Control: Suits Against Foreign Governments

Posted on June 1, 2012 by | 10 comments

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?

10 Comments

Posted in civil procedure, contracts, international law

Who Owns Wolverine’s Bones?

Posted on May 18, 2012 by | 58 comments

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, “on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

58 Comments

Posted in constitutional law, contracts, mailbag, property law, X-Men

Peter Parker, Con Artist?

Posted on April 19, 2012 by | 126 comments

The inspiration for today’s post comes from Greg, who asks:

During the Civil War storyline, for a brief time Peter Parker “outed” himself as Spider-Man. … J. Jonah Jameson wanted to sue Peter for fraud because he sold pictures of Spider-Man to the Daily Bugle under  what [Jameson] claimed were false pretenses. My question is, would that hold any water?

The facts for this question come from Amazing Spider-Man #533 (which you can buy reprinted in The Amazing Spider-Man: Civil War).  Specifically, a lawyer for the Bugle tells Parker that the Bugle is suing him for “misrepresentation, fraud, breach of contract and several other related charges” and they are seeking both compensatory and punitive damages of at least five million dollars.  So, how worried should Parker be about this?  Pretty worried, in our estimation.  Let’s take a look at each charge in turn.

(Before we get started, we’ll mention that there would have to have been a contract between Parker and the Bugle for the photographs because, as an independent contractor, Parker owned the copyright in his photos and would need to license or sell the copyright to the Bugle via a contract before they could be printed.  See this post for more on that.)

I. Misrepresentation

Because both breach of contract and fraud are also listed, we think that misrepresentation is being used in the contract law sense rather than the tort law sense.  In the contract law sense, misrepresentation is also known as fraud in the inducement (i.e. a misrepresentation made in order to induce the other party to enter into a contract).  This should not be confused with the tort of fraud, which we’ll get to shortly.

In New York, “To recover under a theory of fraudulent inducement, the plaintiff must prove: (1) misrepresentation of a material fact; (2) falsity of the representation; (3) scienter; (4) reasonable reliance; and (5) damages.” Creative Waste Mgmt., Inc. v. Capitol Env. Servs., Inc., 429 F.Supp.2d 582, 607 (S.D.N.Y. 2006).  “Scienter” is a fancy legal word for “knowledge,” and in this case means the defendant has to make the misrepresentation knowingly.

So, has the Bugle likely got a case for fraud in the inducement here?  Let’s go through the elements.

(1) Misrepresentation of a material fact.

Right off the bat we run into a small snag: did Parker ever explicitly claim that the photos were unstaged photos of a different person?  Maybe, maybe not.  But even if he didn’t, his silence may be enough.

“[W]hen dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose arises only when one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” Creative, 429 F.Supp.2d at 607.  Such a relation can be imputed by the “special facts doctrine,” under which “the courts impose a duty on a party with superior knowledge of essential facts to disclose those facts where nondisclosure would make the transaction inherently unfair. For this doctrine to be applicable, the plaintiff must prove that (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.” Id.

Clearly, Parker had superior knowledge of Spider-Man’s identity.  Jameson had no clue who Spider-Man was and certainly didn’t suspect Parker.  The information was not readily available, as demonstrated by the fact that quite a few people, Jameson included, had tried and failed to determine Spider-Man’s identity.  And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man.

So Parker’s misrepresentation by omission will suffice.  It’s also definitely a material misrepresentation (i.e. it would have made a difference in whether a contract was agreed to) because Jameson would not have bought the photos if he knew the truth.

(2) falsity of the representation

This one is pretty easy.  At the very least the photos were falsely presented as genuine news photographs and not a semi-staged photo-op for Spider-Man.

(3) scienter

No question here; Parker definitely knew he wasn’t being honest about the photographs.

(4) reasonable reliance

Another easy one.  It was entirely reasonable for Jameson to believe that Parker was not Spider-Man and that the photos were genuine.  Unlike some superheroes (*cough* Superman *cough*), Spider-Man does a believable job of keeping his identity secret, and there was nothing incredible about the photos.

(5) damages

This one is also straightforward.  The Bugle paid Parker money for the photos, per the contract, and so there are damages.

So that’s misrepresentation established.  What does it get the Bugle?  The likely result is rescission of the contract and restitution of any money paid to Parker for the photographs.  So the Bugle gets its money back and no longer owes Parker anything under the contract.

II. Breach of Contract

This one is a little harder to write about, since we don’t know what the terms of the contract were.  It’s extremely likely, however, that the contract included a representations and warranties section in which Parker affirmatively represented that the photos were genuine, unmodified, unstaged, etc.  By trying to pass off the (effectively) staged photos, Parker would have breached the contract.

The practical upshot of the breach of contract claim is the remedy.  Breach of contract remedies are a little complicated, but the main damages here will be the loss of value due to lost reputation.  What it definitely doesn’t get the Bugle is punitive damages, as damages in contract cases are almost always compensatory. Even in cases of a fraudulent breach of contract, punitive damages are not available unless the fraud was “malicious, vindictive or morally reprehensible [demonstrating the] intent of wanton and reckless behavior.” Reinah Development Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487 (1983).  Parker was not trying to scam the Bugle, so we don’t think his conduct rises to that level.

Because the damage due to lost reputation is so hard to measure, it’s possible that Parker’s contract with the Bugle included a liquidated damages clause.  A liquidated damages clause lets the parties agree to a particular amount of damages in advance.  Parker could thus be on the hook for whatever that amount is times the number of photos the Bugle printed (or, less likely, the number it purchased).

III. Fraud

“Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011).  As you can see, that’s remarkably similar to the elements of fraud in the inducement.  The difference in this case is in the remedy.  Whereas the remedy for fraud in the inducement is to undo the contract, the remedy for tortious fraud covers all of the damages stemming from the Bugle‘s reliance on Parker’s misrepresentations and omissions.

But wait a minute, that sounds a lot like the breach of contract damages.  And that’s right: the damages for fraud would be essentially identical to the damages for breaching the representations clause of the contract.  But you don’t get to recover twice for the same injury, so even if the Bugle proved both claims it wouldn’t get twice as much money.  So why bother suing for both?  First, because it might not be able to prove both claims and second, because the contract might not include a representations section (though this is unlikely)

IV. Conclusion

All told, Parker is looking at a pretty serious lawsuit.  As well he should, since passing off staged or manipulated photographs is a serious journalistic no-no, even if it’s done for the best of reasons.

126 Comments

Posted in contracts, mailbag, Spider-Man, torts

John Carter

Posted on March 19, 2012 by | 14 comments

John Carter is Disney’s adaptation of Edgar Rice Burroughs’ Barsoom works, drawing mostly from the first book, A Princess of Mars. Actually, it’s really Andrew Stanton’s adaptation, he of WALL-E fame, because it doesn’t seem like Disney had any actual input, into the film or its marketing. The result is… problematic. But lo and behold, they’ve got a lawyer character who winds up touching on a bit of estate law. So we’ll take a look at that. Some pretty significant spoilers follow. Continue reading →

14 Comments

Posted in contracts, estate law, movies

Breaking Bad: Landlord-Tenant Law

Posted on February 6, 2012 by | 13 comments

Breaking Bad is the award-winning AMC show about a high school chemistry teacher who, after being diagnosed with Stage III lung cancer, decides to provide for his family by cooking meth. Turns out he’s pretty damn good at the cooking part, but the rest of it is where the drama kicks in and why the show is now headed into its fifth season. Obviously, the core of the show involves doing things which are spectacularly illegal, and the show makes no bones about that. But in Episode 4 of the second season, “Down,” there’s a bit of landlord-tenant law that bears examining. Spoilers to follow. Continue reading →

13 Comments

Posted in contracts, criminal law, property law, television

Getting Rich with Superpowers, Part 2: Gambling

Posted on February 3, 2012 by | 31 comments

This is the second post in our series on how common superpowers might be used to make money in the short term.  Our first post was about insider trading, and today we discuss the arguably related field of gambling.  First a little legal background, then we’ll get to the powers.

I. The Law

Throughout this post we refer only to legal gambling; obviously illegal gambling is against the law, and moreover the courts will generally not enforce an illegal gambling contract.  See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”)

There are several ways in which cheating can run afoul of the law.  First, winnings “earned” via cheating have been held in some jurisdictions to be unenforceable (i.e. the losing party can recover their loss from the winner). See, e.g., Berman v. Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963).  Second, states that have legalized gambling have also enacted laws criminalizing cheating.  See, e.g., Nev. Rev. Stat. §§ 465.070, 465.083.  We’ll mostly focus on Nevada law, since it has a well-developed body of law regarding gambling and cheating (no surprise there!).

II. The Powers

There are several powers that could be used to facilitate gambling, including telepathy, empathy, X-ray vision, superhuman speed or dexterity, precognition, eidetic memory, time-travel, and outright probability manipulation.  The question is, which of these, if any, could be legal to use?   We’ll start with what may be the only power that is actually legal to use.

A. Eidetic Memory

Eidetic memory would be of great use to a card counter.  Card counting has been held to be skillful play, not cheating, and a casino that allows a card counter to play must pay the player his or her winnings absent some other fraud.  Chen v. Nevada State Gaming Control Board, 116 Nev. 282 (2000) (en banc).  On the other hand, no one has a right or property interest in gambling at a particular casino, and a casino can bar a suspected card counter from playing.  Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000).  Given that even a perfect card counter will require a hefty bank roll and a long stretch of play in order to realize a significant advantage, this approach, while legal, is far from a guaranteed thing.

B. Empathy

Empathy is where we begin to enter a grey area.  Arguably, reading someone’s emotions is akin to finding a gambler’s tells, and empathy is simply a more precise, direct way than, e.g., looking for facial cues or nervous tics.  Depending on how the power works, it might run into invasion of privacy problems, but some versions of the power (e.g. pheromone detection) likely wouldn’t as they make use of “broadcast” signals.  There is enough uncertainty left in reading an opponent’s emotions that it couldn’t be construed as knowing the outcome of the game, which sets empathy apart from many other powers.

C. Precognition and Time-Travel

Precognition and time-travel are, alas, probably a fraudulent act within Nev. Rev. Stat. § 465.070(5), which prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet, including past-posting and pressing bets.”

Now, the real crux of the matter is the meaning of the word “after.”  A precog clearly places a bet “after” acquiring knowledge of the outcome, but the issue is less clear for a time-traveler.

Suppose the time traveler leaves the present (t1) and goes to the future (t2) to learn the outcome of the game, then returns to the past (t0, even earlier than t1) to place the bet.  Has the time-traveler placed the bet “after” acquiring knowledge of the outcome?  Common sense says yes: from the perspective of the time-traveler, the bet was placed after the outcome was known.  The time-traveler could make the argument that, objectively, the bet was placed before the outcome was known, but believe it or not that level of semantic hair-splitting is frowned upon by judges.

Of course, as with Biff Tannen’s scheme in Back to the Future, Part II, proving that someone is cheating by traveling through time is a tough sell unless time-travelers are well-known to exist.

D. Telepathy and X-ray Vision

Telepathy and X-ray vision are where we really cross the line into cheating  because these powers violate the rules of the game.  There’s no meaningful distinction between peeking over a player’s shoulder and using X-ray vision to look at their hand, and telepathy presents similar problems as well as invasion of privacy issues.  This may well fall under Nev. Rev. Stat. § 465.083, which simply makes it unlawful for any person to cheat at any gambling game.  Somewhat surprisingly, this law has been held not to be unconstitutionally vague, as we’ll discuss in more detail in a moment.

Failing that, these powers also likely fall under § 465.070(2), which prohibits “[placing], [increasing] or [decreasing] a bet or … [determining] the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game or which is the subject of the bet.” In most games, reading an opponent’s mind or viewing their hand is a great example of “acquiring knowledge, not available to all players, … that affects the outcome of the game.”

E. Superhuman Speed or Dexterity, Probability Manipulation

Superhuman speed or dexterity could be used in games like craps, either to place the dice in a particular position after rolling them or to roll them such that they are guaranteed to end up in a particular position.  There are actually cases that deal with these tactics, which hold that they are a form of illegal cheating.  Skipper v. State, 110 Nev. 1031 (1994) (holding that law criminalizing cheating was not unconstitutionally vague as applied to “dice sliding” in craps).

Those same cases would also appear to apply to probability manipulation.  “A skilled dice slider such as [the defendant], surreptitiously and contrary to the rules of the game, alters the probable outcome of a throw and drastically increases the chances of winning certain types of bets on the craps table.”  Skipper, 110 Nev. at 1035 (emphasis added).  Even though someone who manipulates probability may not even touch the dice (instead betting on someone else’s throw) or may play a game like roulette, the same logic would seem to apply.

III. Conclusion

There do not seem to be very many superpowers that could be used to legally and efficiently make money via gambling.  Many of these methods are hard to prove (e.g. precognition, time-travel), but they are nonetheless probably illegal.  Of course, many superpowers could be used to win bets of an altogether different kind, for example Wolverine betting on himself in boxing matches in X-Men, but it’s hard to make really serious money that way without arousing suspicion: eventually people catch on that betting against you is a bad idea.  It may actually be easier for a superhero to make money legally via the stock market than via gambling.

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Posted in contracts, torts

Daredevil #7

Posted on December 28, 2011 by | 13 comments

There weren’t a lot of legal issues raised in the most recent Daredevil, so this will be a slightly short post, but there are a couple of points, including a nice detail about the tort defense of necessity.  Spoilers inside!

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Posted in contracts, criminal law, torts

Once Upon a Time

Posted on November 16, 2011 by | 17 comments

Like Grimm, Once Upon a Time is a show that blends fairy tales with the modern world—and brings up some interesting legal issues along the way.  Although Emma, the main character in Once Upon a Time, is a bounty hunter, there are indications that she will become a sheriff’s deputy, bringing the show closer to a police procedural.  We’ll be checking out all of the episodes over time, but Law and the Multiverse reader Marize wrote in with some specific questions about episode 4, which is the subject of this post.  There are a ton of spoilers here, so check out the episode on Hulu if you haven’t seen it already (with apologies to our non-US readers).

For those unfamiliar with the show, the premise is that various fairy tale characters have been whisked away to Storybrooke, Maine, where they play out a modern-day version of themselves (e.g. the evil queen is the mayor, Rumpelstiltskin is a pawn-shop owner).  The episodes focus on Emma’s efforts to solve the fairy tale characters’ problems, bringing closure to their stories.

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Posted in contracts, family law, television