Category Archives: guest posts

Who’s paying for all of this?! Thor: the Dark World Part 2

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the first part of my examination of Thor: the Dark World, I looked at who the University of Greenwich (“the Claimant”) could sue for the property damage it suffered as a result of the battle between Thor and Malekith in the final act of the film. Here, we take a look at whether the Claimant may still be compensated for its loss by suing the employer of the film’s protagonists, S.H.I.E.L.D., under the doctrine of vicarious liability.

The conclusion reached in my previous analysis was not a good one for the Claimant. There is a claim against Malekith, but serving his estate in the realm of Svartalfheim with a claim form would be difficult. Suing the God of Thunder presents the same problem, but there is also the additional concern of public authority immunity from negligence claims. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby (“the Additional Party”) all had a hand in the loss suffered by the Claimant as well, but the amount of assets they own would make recovery from them pointless. It would seem then that the University would have to pay for the renovation of their institution out of their own pocket.

Luckily, the University of Greenwich may still raise a claim against S.H.I.E.L.D. as the employer of the film’s protagonists. This would be under the doctrine of vicarious liability, which makes an employer liable for the torts committed by its employees. This is a very attractive option for the Claimant because not only is S.H.I.E.L.D.’s primary residence on Earth, it possesses a substantial fortune to recover from. In the second part of my analysis of Thor: the Dark World, I look at how the University of Greenwich can argue the doctrine of vicarious liability in English tort law in making S.H.I.E.L.D. liable for the negligence of Thor and his companions.

 

Vicarious liability

Simply put, vicarious liability makes an employer liable for a tort committed by the employee. The tort in question here is negligence. The doctrine requires that (i) a tort was committed by the employee; (ii) that the employee can be said to be in a relationship of employment with the employer; and (iii) that the tort was committed in the course of employment. In the first part of my analysis, I had established already the strong case that the Claimant has against the defendants for negligence. The following discussion will focus on the second and third requirements of vicarious liability as they relate to Thor and the Additional Party.

 

An employment relationship

It may seem obvious who the employee and employer are between the two parties, but determining whether such a relationship existed when a tort was committed has proven to be a complex matter for the Courts. The starting point will be something as simple as whether there is a contract of employment in existence. But beyond the hard evidence available, the traditional test has been one of control: an employer is someone who could not only tell an employee what to do, but also how to do it. Deviations are made from this general test depending on the facts and circumstances of each case. Take an employee who possesses special skill, such as the ability to summon lightning. An employer may well be able to tell Thor what to do with this skill, but giving orders on how to do so is another matter entirely!

In fact, the traditional test of control has shown its limits in applicability over the years. In the case of Cassidy v Ministry of Health [1951] 2 KB 343, an employer was found liable for the torts of its employees despite the fact that the latter had special skill and thus an absence of control. The modern approach of whether there is an employment relationship takes a holistic view; the courts will take a look at the entire relationship. Certain elements will undoubtedly be of particular significance, such as the degree of control, who has the right of appointment and dismissal, method of payment, and the provision of work equipment (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497).

The film does not provide much evidence as to what sort of relationship S.H.I.E.L.D. has with Thor or the Additional Party. We know from Avengers Assemble that Thor is at the very least an Avenger, and Mr Selvig was working for S.H.I.E.L.D. at the beginning of that film before he was brainwashed by Loki. However, Mr Selvig was interned in a mental hospital by the time of Thor: the Dark World, so his employment with S.H.I.E.L.D. may have terminated. Finally, there is no indication as to whether Ms Foster, Ms Lewis and Mr Boothby work for S.H.I.E.L.D. either, despite sharing similar goals.

Regardless, let us not have something as silly as the lack of evidence halt us from our analysis. Were an employment relationship to be assumed, the Claimant must next prove that the tort committed by Thor and the Additional Party was done in the course of employment.

 

In the course of employment

It is not enough that S.H.I.E.L.D. was the employer at the relevant time; the tort must also be committed in the course of employment. So an employer cannot be made liable for a tort committed by an employee off the clock. Answering this question does however bring us back to the consideration made in the first part of my analysis concerning acting in a public versus private capacity. Remember, the UK Courts have shown a reluctance to impose a duty of care on a public authority for policy reasons. The preliminary question then is whether S.H.I.E.L.D. is a public authority.

The publication history of S.H.I.E.L.D. has shown that control over the organisation has shifted between the United Nations and the United States government depending on the storyline. Fortunately, both bodies are considered public authorities, which suffices for the purpose of this discussion. Thus, as employees of S.H.I.E.L.D., as a public body, there is a viable defence for our heroes to be exempt from liability for policy reasons.

Nevertheless, let us consider the possibility that S.H.I.E.L.D. is a private body. In determining this component of vicarious liability, the Courts have traditionally adopted the Salmond test. This test states that a tort will be committed in the course of employment if it is either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master. The Courts have however demonstrated a tendency to go beyond this test by looking at how closely connected the tort is with the employment.

The relevant principle to be applied concerning the close connection test is whether the tort is so closely connected to the employment, the employer can be said to have introduced the risk of the wrong (Lister v Hesley Hall Ltd [2001] UKHL 22). The tort our heroes are liable for is the property damage they caused in the course of battling Malekith. The mandate of S.H.I.E.L.D. is the defence of Earth from paranormal and superhuman threats. It is therefore likely that Thor and his companions would be found acting in the course of their employment given the close connection found between the purpose of their conduct and the raison d’etre of S.H.I.E.L.D.

It can be concluded then that if S.H.I.E.L.D. is considered to be a public body, then our heroes have acted in the course of their employment sufficient to absolve themselves from liability. But if S.H.I.E.L.D. were a private body, then it would be vicariously liable for the torts committed.

 

Conclusion

Taking stock of the conclusions made in the first and second parts of my analysis, the University of Greenwich is advised to raise a claim against S.H.I.E.L.D. for the vicarious liability of Thor and the Additional Party. The defendant will argue vigorously that they should be exempt from liability on public policy grounds, but failing such a defence, the close connection test will prevent the employer from distancing itself from the actions of the film’s heroes. Claiming against S.H.I.E.L.D. is the most attractive option given the vast fortune it possesses, and the practical advantages of serving a claim form on a defendant that maintains a primary residence on Earth.

Who’s paying for all of this?! Thor: the Dark World Part 1

(This guest post was written by Christopher Chan, who is currently studying for his Master of Laws at University College London.  He is an aspiring barrister in London, England looking to practise in the areas of insolvency and restructuring.)

In the final act of Thor: the Dark World, our hero faces off against Malekith in a bid to save the world from total darkness. Predictably, the supervillain is no match for the God of Thunder, but the real victim of the clash is the University of Greenwich. The battle that ensued on the campus of this historical institution resulted in an astronomical amount of property damage. Since the event giving rise to damages occurred on English soil, the applicable law for a claim would be English tort law. This will be the first part of an analysis looking at whom the University of Greenwich (“the Claimant”) may sue under the tort of negligence for loss suffered. The second part will consider whether it may be more sensible to sue S.H.I.E.L.D. as the employer of our superhero.

 

A claim in negligence

When an ordinary citizen harms another, whether it is an injury to the body or damage to one’s property, a private claim can be made under the tort of negligence for compensation. To succeed in a claim of negligence, the Claimant will have to prove a number of elements to satisfy the Court.

The first element is the existence of a sufficient connection between the Claimant and the defendant. This is known in law as owing a duty of care, which is another way of saying one owes a responsibility to another person. In establishing this connection, the traditional principle the English Courts have used is the neighbour principle. This tells us that people must take reasonable care not to injure others who could foreseeably be affected by their action or inaction (Donoghue v Stevenson [1932] UKHL 100).

But it is not enough that a duty was present, the defendant must have breached that duty as well. An objective standard is used in assessing whether the duty has been breached, which means that the Court will not consider particular character traits of the defendant. The defendant will be measured against the standard of the reasonable person who is undertaking the task or activity in the course of which the negligence is said to arise.

Next, it must be shown that the breach caused the loss suffered by the Claimant. In proving this element, the Claimant will have to show that but for the acts of the defendant, the injury suffered would not have occurred. It must also be demonstrated that where there is a chain of events that led to loss, nothing new occurred that would break that chain. This latter consideration is a test of legal causation.

Finally, after all of the above elements have been proven, the defendant may still escape liability if he/she can mount a sufficient defence. An example would be where the Claimant had voluntarily placed itself into a situation where harm might result; the Claimant is said to have voluntarily assumed the risk that resulted in the loss suffered.

 

Malekith – Causation in law

Let us assume that the ruler of the Dark Elves left an estate for the Claimants to claim against. A duty of care is presumed to arise because the two parties are close together, just like two drivers on a road. Establishing that this duty has been breached will be fairly simple given Malekith’s smashing entrance onto the university grounds. But for the defendant crashing his mother ship into the Old Royal Naval College, the property damage that resulted would not have occurred and so causation is also proved.

Can Malekith be said in law to have caused the entirety of the damages suffered by the Claimant, or just the loss resulting from the parking of his mother ship on George Square? Legal causation is a bit trickier to determine because although the entirety of the damage can be strictly said to have occurred because of Malekith’s conduct, some of the resulting loss may have been caused by a new event that interrupted the chain of causation. Indeed, it was the arrival of Thor and the ensuing battle that caused the majority of the damage. If the defendant can prove that the superhero’s appearance broke the chain, then the extent of his liability will be limited. We turn next to what the addition of the God of Thunder to the factual matrix means for the Claimant’s action.

 

Thor – Duty of care owed by public authorities

Our protagonist poses an interesting case given that he may be considered a rescuer, which means that his arrival would not break the chain of causation for the claim against Malekith. This is because the intervention of a rescuer is considered by the Courts to be a foreseeable, natural and probable result. Even if the rescuer were careless in his rescue, it’s unlikely that the Court would allow Malekith to use this as an excuse for the damage.

But what about claiming against Thor for the property damage? The role that our hero plays parallels situations involving the police, which is a public authority. In general, a public authority can owe a duty of care, but for policy reasons no such duty would be imposed (Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39). The UK Courts have maintained a consistently strong stance prohibiting the imposition of a duty on police on the basis that they should be given discretion in how to conduct their operations. This is a hot topic of contention in the UK, with cases being appealed to the European Court of Human Rights on a number of occasions (Osman v The United Kingdom Case No 87/1997/871/1083).

The strength of the Claimant’s case against Thor will therefore hinge on whether the defendant is considered to have acted in a public or private capacity. If the former were to be assumed, then it would be unlikely for a negligence claim to succeed for policy reasons. However, if Thor were considered to have acted in a private capacity, the Courts will likely find him liable in negligence for the property damage caused, albeit leniency afforded to him for acting as a Good Samaritan rescuer.

 

Jane Foster / Erik Selvig / Darcy Lewis / Ian Boothby – Additional parties

It may be hard to raise a claim against the God of Thunder due to the difficulties involved in traveling to Asgard. Rather, it may be more sensible for the Claimant to sue the Asgardian Prince’s companions instead.

There should not be a problem for the Claimant in recovering from any of these four parties; none of the elements that need be proved show signs of any contentious points arising. However, there may be practical reasons why the Claimant would not wish to pursue a claim. For one, the public policy defence available to Thor may also be applicable to his companions. A more simple reason would be that any damages recovered from the defendants would be nominal, reflecting only a fraction of the substantial loss suffered. There are no indications in the Marvel films that would suggest that these particular defendants own a considerable amount of personal assets. The property damage they helped cause would have likely reached millions of pounds; it is improbable that even the combined assets of all four defendants would amount to a few hundred thousand pounds.

 

Conclusion

The chances for the University of Greenwich to win a lawsuit look grim. Malekith is certainly liable for at least a part of the property damage suffered by the Claimant, but suing him will be difficult. We’re not sure if the supervillain has left an estate for the Claimant to recover from, and then there are the practical difficulties of traveling to the realm of Svartalfheim to serve a claim form.

Travel difficulties are equally applicable to the situation with Thor. What’s more, the God of Thunder may escape liability entirely if the Courts accept that he was acting in a public capacity. Ms Foster, Mr Selvig, Ms Lewis and Mr Boothby can also rely upon this defence, but for financial reasons, the Claimant would unlikely want to sue them anyway.

However, all is not lost for the university; they may still be able to sue S.H.I.E.L.D. under the doctrine of vicarious liability. In the second part of my analysis, I will be looking at the strength of the Claimant’s case against Thor’s employer.

Human Remains and the Walking Dead

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog, and a previous guest poster here at Law and the Multiverse.  This post was originally written for the Customs Law Blog and is republished here by his invitation.

Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I’m only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States (“HTSUS”) for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties “corpses, together with their coffins and accompanying flowers.”

When goods arrive at a port in the U.S., they are usually subject to an “entry.” That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customs and Border Protection. The Customs Regulations provide that “all merchandise” is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the “merchandise” to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors? That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don’t know how I missed it when it was issued.

The ruling starts with the ancient legal principle that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King’s Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are “corpses” for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)” exemption. Based solely on longstanding practice, a couple rulings, and “the weight of history,” Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the “merchandise.”

I have a couple of questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a “corpse.” What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a “corpse” and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the “donor” was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a “corpse?” If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct “birthday” would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it’s duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the “owner, purchaser, or consignee” of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.

Laurel Lance’s Drug Problem

This guest post was written by Tracy Douglas, who is an attorney in the Illinois Governor’s Office. The opinions expressed in this article are solely those of the author and not those of the Governor’s Office.

Arrow season 2 includes a plot about Laurel Lance’s drug and alcohol addiction. This raises several legal issues about public employees and legal ethics.

 

1. Can Laurel be fired?

In “Blind Spot,” Laurel investigates Sebastian Blood. After finding drugs in her apartment, the cops arrest Laurel for drug possession (she’s been using her dad’s prescription drugs). When she’s released from police custody, she’s kidnapped, and it appears a cop was behind everything, not Blood. Assistant District Attorney Adam Donner tells her the drug charges were dropped, but she’s being fired because she has a drug problem. He tells her it’s not coming from District Attorney Spencer but from him because he hired her.   Whether her firing is proper depends on if Laurel had a right to notice and a hearing.

In certain situations, public employees have a right to notice of termination and a hearing before they are terminated. This is guaranteed by the 14th amendment’s due process clause, which protects government employees from being fired without notice and a hearing if they have a protected property interest and can only be dismissed for cause. Bd of Regents v. Roth, 408 U.S. 564, 577, 578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603 (1972). In this analysis, it must be determined if the public employment at issue is a protected property interest. Roth at 571. A property interest can be created by “existing rules or understandings that stem from an independent source such as state law.” Roth at 577. Further, where a person’s reputation is at stake, notice and an opportunity to be heard are important. Roth at 573. A public employee who can only be dismissed for cause is entitled to a limited pre-termination hearing to be followed by a more extensive post-termination hearing. Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545-546 (1985). Therefore, to be a proper firing, Laurel needs notice and a hearing if she has a property interest in her job. To have a property interest, reputation can be looked at, but state law must be examined.

Arrow is not clear where Starling City is located. The DC comics have shown it as a stand-in for San Francisco or Seattle. For this discussion, California, Washington and Illinois law will be used to see how public employment and legal ethics are treated by different states. In Washington and California, Laurel would have more job protections as a county employee than in Illinois.

In California and Washington, Laurel has a protected property interest established by county rules and possibly the collective bargaining agreements. This means she has a right to notice and an opportunity to be heard. County attorneys in San Francisco county and King County, Washington (Seattle) are represented by unions. The collective bargaining agreements might include more protections than the county rules. In the absence of the labor agreement, her employment is protected by county civil service rules. She would have notice of her termination and a right to a hearing before she is officially terminated. San Francisco County Civil Service Rule 122.1.3; 122.1.4; King County Code 3.12.270.   This satisfies the 14th amendment’s due process requirement. So, if Starling City is in a state with laws like California and Washington, then Donner could not fire Laurel without a written notice and a hearing.   His informing her may be an informal hearing under Loudermill, but she has a right to a fuller hearing. This is important because under Roth her reputation is at stake and she needs the chance to tell her side.

On the other hand, if Starling City is in a state like Illinois, Laurel may not have those protections. The state’s attorney has complete control over the office, including the ability to hire and fire employees. 55 Ill. Comp Stat. Ann. § 5/3-9006 (West 2014). Laurel may have an argument based on Roth and Sindermann that she has a protected property interest in her job. However, both Roth and Sindermann talk about public employees who are protected from being fired without cause. Without a union or contract, Illinois assistant state’s attorneys are at-will employees, and that means Laurel likely won’t have a right to notice and a hearing because firing is not limited to for cause. She could claim a right because her reputation is at stake, but the firing seems proper under Illinois law.

 

II. Would a state bar investigation make her unemployable?

In “Tremors,” Laurel refuses to seek help through counseling, and she finds out from her colleague, Joanna, that she’s under investigation by the state bar. It is looking in to her fitness to practice based on her arrest. It’s not clear how much time has passed from her firing, so it’s not clear if this is an initial investigation or if charges have been filed. Joanna’s partner sits on the disciplinary committee of the state bar, and he found out Laurel was under investigation when they thought about hiring her.   This is probably its own violation because if it is not public information yet, then he is revealing confidential information. Joanna says that while the investigation is out there, they can’t hire her. Usually, only the most egregious violations of legal ethics result in disbarment. For other cases, there are suspension and censure punishments. Laurel’s actions may have violated professional rules, but punishment depends on the severity of the violation. If the investigation is beyond the beginning stages, then Laurel will know about it. If she knows about it, then she should tell potential employers. While there is an ongoing investigation, she would likely be unemployable unless the person is a friend doing her a favor or doesn’t care about the bad optics of hiring someone under investigation.   State legal ethics are overseen by the courts, but the process varies.

In California, the state bar court oversees the rules of professional conduct and disciplinary matters. Cal Bus. & Prof. §§ 6076, 6077 (West 2014).   Under the California rules, lawyers face discipline if they “intentionally, recklessly, or repeatedly fail to perform legal services with competence” or commit an “act involving moral turpitude, dishonesty or corruption.” Cal. Rules of Professional Conduct, Rule 3-110; Cal. Bus. & Prof. § 6106. When a lawyer is charged with a crime, the bar must be notified, and it could start its own investigation even when the charges are dropped. Cal. Bus. & Prof. § 6101; California Rules of the State Bar, Title 5, Rule 2402. Any of these might cover what Laurel does in the show. What’s problematic about this situation is that Laurel seems to not know about the investigation. It’s possible that Laurel would not know about it if it’s at the preliminary stage, before she’s been notified. However, the lawyer who is being investigated would eventually be notified when charges are filed, and that would be public information. California Rules of the State Bar, Title 5, Rule 2403; Rule 2604. So, being investigated by the bar and being rendered unemployable rings true, but she would probably know about the investigation.

Washington and Illinois have similar Rules of Professional Conduct. Washington’s misconduct rule says that misconduct includes “commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Washington Rules of Professional Conduct Rule 8.4(b); Illinois Rules of Professional Conduct Rule 8.4(b) (2010). Washington statute provides grounds for disbarment, including “any act involving moral turpitude, dishonesty, or corruption” and “gross incompetency in the practice of the profession.” Wash. Rev. Code Ann. 2.48.220 (West 2014). A criminal conviction is not required to begin disciplinary action. Washington Rules of Professional Conduct Rule 8.4(i). Washington’s rules also have a catchall “engage in conduct demonstrating unfitness to practice law.” Washington Rules of Professional Conduct 8.4 (n). In Illinois, however, the rules drafters clarified that lawyers are “professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” Illinois Rules of Professional Conduct Comment 2 (2010). Laurel could face an investigation for any of these, especially if her arrest was reported to the bar and an investigation began. It’s possible that her arrest, even though the charges were dropped, would reflect adversely on her fitness as an attorney. If she was reported, an investigation would begin.

Washington and Illinois have similar investigation practices. The Washington Disciplinary Counsel investigates complaints against lawyers, and Laurel would have an opportunity to respond during the investigation. Washington Rules for Enforcement of Lawyer Conduct (ELC) 5.3 (a)(b) (2014). In Illinois, it is the Attorney Registration and Disciplinary Commission, which investigates when it receives a complaint and may give the accused an opportunity to respond. IARDC Rule 53. If sent to a hearing, then the attorney would receive notice of the filing of charges. ELC 10.3 (a) (1)(2) (2014); IARDC Rule 55. Complaints are also published on the ARDC’s website, so a potential employer who searched the attorney’s name would be able to find the complaint Like California, the point about being unemployable seems correct, but not knowing seems wrong unless it’s in the very beginning.

Substance abuse is a real problem among lawyers. Most states have Lawyer Assistance Programs to help deal with these problems. The Washington State Bar Association has one, and Illinois law provides one ran by the Supreme Court. 705 Ill. Comp. Stat. Ann. § 235/1. California seems to have a unique program, the Attorney Diversion and Assistance Program. Cal. Bus. & Prof. §§ 6230, 6231. The State Bar can refer the attorney under investigation to this program, but the attorney will be on either inactive status or have practice restrictions, which will be lifted when his time in the program is over. Cal. Bus. & Prof. § 6232.

 

III. Can she get her job back?

In “Birds of Prey,” Donner invites Laurel to prosecute Frank Bertinelli. Laurel mentions the bar investigation is ongoing, but Donner says he has a friend on the committee who can fix it. By saying this, he commits his own ethics violation in Washington and Illinois by “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” Rule 8.4 (e) Given that he was willing to put one criminal on trial in the hopes of getting another criminal to appear, it’s not surprising that he would commit an ethics violation. This is questionable because there is usually more than one person on the committees that hear lawyer complaints. He would need to convince others to vote with him. However, it turns out to be a plot by Donner to catch the Huntress, Frank’s daughter. The Huntress comes, takes hostages in the courthouse, and is eventually captured. In the aftermath, DA Spencer tells Laurel that Donner wasn’t authorized to rehire her, but Laurel manages to keep her job by pointing out that Spencer wouldn’t want the fact that Donner was behind the hostage crisis to get out. Whether this is realistic depends on the rules governing rehiring.

If Starling City is in a state with laws like California and Washington, then this part of the plot would not be realistic unless Laurel had gone through a due process hearing to get her job back after her termination. In San Francisco county, a termination could affect the ability to be rehired. San Francisco County Civil Service Rule 122.1.4. If she were to reapply, she would have to go through the examination process after completing a year of service outside the county, and her appointment would have to be approved by the Human Resources Director. San Francisco County Civil Service Rule 122.3.   Donner would not have the ability to rehire her. If she was properly fired and didn’t challenge it, then she would not be able to be rehired quickly given these rules.

Similarly, in King County, Washington, prosecuting attorneys are subject to a competitive process because they are not career employees. KCC 3.12.090. Laurel would not be able to be rehired unless she either challenged her dismissal or went through the competitive process again. Since the episode shows Donner offering her the job without a competitive process and without a challenge of the dismissal, then getting the job back quickly is not realistic. Depending on who is the appointing authority within the King County prosecuting attorney’s office, Donner may have had the ability to rehire her. But the process wouldn’t be as easy as shown on the show.

On the other hand, if Starling City is in a state like Illinois, then she would be able to get her job back without going through a competitive process because state’s attorneys control their offices. The state’s attorney is in charge of the office and can hire and fire assistants. 55 Ill. Comp. Stat. Ann. § 5/3-9006. However, a bar investigation would be a hindrance because it would reflect poorly on the state’s attorney. Donner said he hired her in the first place, so Laurel might have an argument that he had apparent authority through agency principles to re-hire her. In a state like Illinois, getting rehired quickly is more believable even if unlikely given the investigation.

 

IV. Conclusion

Arrow season 2 looks at Laurel’s professional descent and drug addiction. It skips some steps that would be required if it took place in some states (notice and a hearing before being fired, notice of an investigation, rehiring steps). These could have been mentioned, but not shown, if they were required, depending on state law. The writers may have had to ignore some things and not show them because it is not the main plot. The beauty of not defining which state Arrow takes place in is that the law might not be wrong because state law differs on this topic. In the real world, though, she would probably not be able to get her job back that easily, assuming her firing was proper. If the state bar investigation is beyond the initial phase, Laurel would know about it and would not find out from a colleague. Unless the person hiring her is okay with hiring someone under investigation, then the investigation would render her unemployable. And Donner should not imply that he can fix it with a friend on the committee. As a device to show character growth and continuing corruption in Starling City, it works.

Lara Croft: Tomb Raider…and Wanted Felon

(This guest post was written by unapologetically geeky gamer lawyer Angelo Alcid, who writes about real-life video game law issues at his blog The Geek Law Journal.)

Since the release of Tomb Raider in 1996, millions of people have been happily raiding tombs as intrepid archaeologist Lara Croft; however, back in April of last year, Mark asked: how legal is anything Lara Croft does? (Note: Since I am a U.S. attorney, this analysis will be based on prevailing U.S. law. Ms. Croft’s fate in the courts of her home country of England is best left to experts across the pond.)

The UNESCO 1970 Convention

The single most significant law affecting Ms. Croft’s globe-spanning archaeological pursuits is the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The UNESCO 1970 Convention was drafted to combat the illicit trafficking of cultural artifacts by giving member nations the right to recover stolen or illegally exported antiquities from other member countries.

At the time of this writing, 124 nations are signatories to the treaty, including almost every nation that Lara Croft has visited during her various adventures (except for Tibet and Thailand). The United States ratified the UNESCO 1970 Convention and implemented it with the Convention on Cultural Property Implementation Act (CIPA), codified in 19 U.S.C. §§ 2601-13.

That being said, the UNESCO 1970 Convention and CIPA only come into play if the items in question were in fact 1) cultural artifacts, and 2) stolen or illegally exported. While UNESCO provides model provisions regarding state ownership of cultural objects, such model provisions are not themselves legally binding, and it is up to each member nation to implement laws concerning the ownership and exportation of cultural artifacts.

The Raiding of Foreign Tombs

Whether Lara Croft could face liability for the actual act of “raiding” would depend upon the local laws governing the tombs in question. The games are notably silent as to Lara having the proper permits to conduct her excavations, but it seems safe to assume that her tomb raiding is being done without the permission of the local governments and would almost certainly subject her to civil and/or criminal liability. (To be fair to the game developers, a cutscene or level wherein Lara visits a Peruvian government building to file for permits might not have made for the most exciting game.)

The question of whether or not Lara’s tomb raiding are illegal in the countries in which the tomb raiding is rather straightforward – the answer is almost certainly yes, as in each case she goes in without government sanction, guns blazing, often resulting in the complete destruction of the tomb in question.

For example, in Egypt, Article 6 of Law 117 states that “[a]ll antiquities are considered to be public property . . . It is impermissible to own, possess or dispose of antiquities except pursuant to the conditions set forth in this law and its implementing regulations.” Furthermore, Article 41 states that anyone who “unlawfully smuggles an antiquity outside the Republic or participates in such an act shall be liable to a prison term with hard labor and a fine of not less than 5,000 and not more than 50,000 pounds.” There are prison terms and fines outlined for removing an antiquity from its place, for transporting it outside of Egypt without express government permission, and for defacing artifacts and monuments, all of which Lara does during her brief time in Egypt looking for the final piece of the Scion in the first Tomb Raider game.

Rather than list off the innumerable fines and jail terms Lara would no doubt face in the various nations from which she retrieves artifacts, instead I will examine the legal consequences Lara may face after her adventures are concluded and she brings these artifacts home to hang up on her wall. (Lara Croft’s official home is in England; however, as previously stated, I will be analyzing her situation in the context of U.S. law. I would welcome a British lawyer’s perspective on how Lara would fare over there.)

National Stolen Property Act

In the U.S., a person may be subject to both civil and criminal liability for the sale and transport of illegally exported cultural artifacts. While Lara doesn’t ever actually sell any of the artifacts she finds, the fact remains that she is transporting all of these artifacts across state/national borders all the time, with many of them winding up in her personal collection at home. (For example, she has the Ark of the Covenant just sitting in the main hall of her mansion.)

The National Stolen Property Act (NSPA) prohibits the transportation “in interstate or foreign commerce [of] any goods, . . . of the value of $5,000 or more,” with knowledge that such goods were “stolen, converted or taken by fraud.” 18 U.S.C. § 2314. Enacted in 1948, the NSPA was originally intended to aid states in their pursuit of thieves, as the states’ ability to prosecute thieves was often limited when the thieves (or the property) would cross state lines.

United States v. McClain

However, in addition to interstate commerce, the NSPA also specifically mentions foreign commerce, and as a result it has been applied to the illegal import of artifacts stolen from foreign nations. In United States v. McClain, the defendant was prosecuted under the NSPA for illegally importing several pre-Columbian artifacts from Mexico.

On appeal, the defense argued that the NSPA could only be applied if the artifacts were  “stolen” as defined by the NSPA, and that the term “stolen” only covers “acts which result in the wrongful deprivation of rights of ‘ownership’ as that term is understood at common law. United States v. McClain, 545 F.2d 988, 994 (5th Cir. 1977). In other words, he couldn’t have stolen them if they weren’t officially owned by anyone.

The court reasoned that an explicit declaration of ownership by the government would be sufficient to consider the illegally exported artifacts “stolen” under the NSPA. (Without such an explicit declaration of ownership, prosecuting people in the U.S. for illegally exporting artifacts from foreign nations would simply amount to the United States enforcing the laws of other nations for them.)

While the respondents argued that Mexico had passed laws protecting their archaeological interests dating back to 1897, the court did not find a law specifically declaring ownership over the type of artifacts in question until 1972, when Mexico passed the Federal Law on Archaeological, Artistic and Historic Monuments and Zones. 312 Diario Oficial 16, 6 de mayo de 1972. Article 27 states that “[a]rchaeological monuments, movables and immovables, are the inalienable and imprescriptible property of the Nation.”

Because court could only establish that Mexico had officially declared its ownership interest over the artifacts in 1972, and it could not be established precisely when the defendant had exported the artifacts, the defendant was eventually acquitted of all but the conspiracy charges.

The McCain decision was cited 25 years later, in Unites States v. Schultz, 333 F.3d 393 (2003), in which the defendant was also prosecuted under the NSPA for the receipt of stolen Egyptian antiquities. In Schultz, the court looked to a law passed in Egypt (“Law 117”) that declared all antiquities found in Egypt after 1983 to be the property of the Egyptian government, and upheld the defendant’s conviction. Schultz was sentenced to 33 months in prison and a fine of $50,000, and nearly all of the artifacts he received were returned to Egypt.

Conclusion

On top of all the possible fines and jail time Lara Croft would likely face in each nation she visits in her tomb-raiding adventures, for each artifact she brings home she may also be prosecuted by the U.S. government for the transport of stolen goods under the National Stolen Property Act as long as the artifact’s nation of origin has enacted a law officially declaring state ownership of such artifacts. Furthermore, all of the various artifacts she retrieves will likely be returned to their nations of origin under the UNESCO 1970 Convention and CIPA.

Addendum

This analysis was focused specifically on the legal ramifications of the act of retrieving and transporting the artifacts central to the Tomb Raider games. In the course of the first game alone, Lara Croft also breaks into the corporate headquarters of Natla Technologies, kills a number of endangered animals (like wolves and gorillas, not to mention the sasquatch and dinosaurs), and also straight up shoots a guy without (much) provocation.

How legal is anything Lara Croft does? The short answer is, “Not very.”

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.

A Comic Book-Inspired Law School Final Exam

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog.  He sent me this final exam, which he recently gave in his Trade Remedies class.  According to Prof. Friedman, “I stressed to my students that the names and locations were not particularly relevant. Nevertheless, I have no doubt they are wondering what I was thinking. It is a bit of a scavenger hunt for random DC universe references, from the well-known to the obscure.”  Thank you to Prof. Friedman, and I hope you all enjoy reading it as much as I did!

IBT 705 International Trade Remedies Law

Spring 2014

Final Exam: The Dark Knight Edition

Instructions:

  1. To complete this exam, you may rely on your class notes, textbook, and a calculator. No other resources can be consulted.
  2. Read the facts below and respond accordingly. Credit will be earned by properly identifying legal issues, stating the relevant rules, applying the facts to the rules, and logically stating your advice to the client.

You are an associate in the International Trade Department of Grabemann, Loring and Ross in Ivy Town, USA. Jean Loring, one of the name partners, has called you into her office. She is meeting with a Mr. Alfred Pennyworth, who is there on behalf of your firm’s biggest client, Wayne Enterprises.  Ms. Loring and Mr. Pennyworth relayed the following facts to you.

From 2011 on, there have been only three companies in the United States that produce high quality bullet proof body armor. Those companies are Wayne Enterprises, Queen Consolidated, and Kord Industries. Wayne Enterprises produces approximately 60% of the body armor made in the United States. The remaining approximately 40% is divided evenly between Queen Consolidated and Kord Industries (each with 20%). Because of the nature of the product and federal government restrictions, there is a limited U.S. market for body armor.

The basic technology underlying the design and manufacturing of this body armor was invented by Lucius Fox, an employee of Wayne Enterprises. In 2008, Mr. Fox secured a patent covering the technology and its production. He assigned that patent to Wayne Enterprises, making Wayne Enterprises the owner of the patent. Wayne Enterprises has granted non-exclusive licenses to exploit the patent to both Queen Consolidated and Kord Industries. Wayne Enterprises also owns the U.S. trademark rights to “Ballistic Armor Technology” and “BAT” to describe the body armor. Both marks are registered with the U.S. Patent and Trademark Office and appear on the principal register of trademarks.

Somewhere in the central Asian republic of Nanda Parbat (a WTO member), a shadowy company called Demon’s Head Ltd. has been making inferior body armor and supplying it free of charge to the local criminal market. Mr. al Ghul, the president of Demon’s Head, has vowed to enter the U.S. body armor market with the express intention of pushing Wayne Enterprises, Queen Consolidated, and Kord Industries out of the market. That will allow Demon’s Head to sell BAT® body armor to members of the criminal underworld, making al Ghul the leader of a criminal army in the United States. To do that, al Ghul has enlisted the League of Corporate Assassins to launch his four-step plan.

  1. First, in 2011, al Ghul instructed his associate Antonio Diego to kidnap Mr. Fox in a successful effort to secure the information needed to produce BAT® body armor using the patented production methodology. Fox was later rescued unharmed by Wayne Enterprises Chief of Security Barbara Gordon.
  2. AlGhul then convinced RamaKushna, President ofNandaParbat, that additional exports to the United States would be good for the local economy. To help encourage economic activity, the President made three declarations having the force and effect of law as of January 1, 2012.
    1. All companies in Nanda Parbat that export goods are entitled to a credit against their overall corporate income tax liability equal to 1% of the value of the exported products.
    2. No bank in Nanda Parabat making loans to domestic producers of textiles and apparel may charge interest in excess of 3% per annum but the government will pay the bank to make up any difference between the 3% fixed rate and the prevailing market rate of 15% per annum.
    3. Every company in Nanda Parabat that employs more than 100 people will receive an annual grant to support on-site child care for workers’ children.
  3. Next, al Ghul instructed Anthony Ivo, Chief Scientist at Demon’s Head, to begin production of BAT-style body armor suits using Wayne Enterprise’s patented BAT® technology. This product proved to be far superior to his prior efforts, due to the stolen BAT® technology. As a result, in January 2012, Demon’s Head began selling body armor to the Nanda Parabat police and army for the dollar equivalent of $5000 per full suit (not including optional cape). At the same time, Demon’s Head continues giving away body armor suits to criminals in Nanda Parabat.
  4. Simultaneously, Demon’s Head began shipping body armor to the U.S., where it is imported by the Talia Distributors, a company set up and wholly owned by Demon’s Head. Mr. al Ghul is the president of both companies. Talia Distributors repackages, markets, and sells the body armor at wholesale to Cobblepot & Co., H. Dent Corp., and Sionis Systems Ltd. who sell to retail customers in the United States (both legal and criminal enterprises). Under a strict transfer pricing methodology, Talia Distributors pays Demon’s Head $2500 per full suit. The price to Cobblepot, Dent, and Sionis is set at $3000 per full suit. Talia Distributors keeps the $500 as a commission to cover its costs.

The influx of body armor from Nanda Parabat is taking a toll on the domestic industry. Felicity Smoak, who works for Queen Consolidated, prepared the following report showing declining sales of body armor suits in the U.S. At the same time, sales are increasing in Nanda Prabat. She also confirmed that Demon’s Head has no customers outside of Nanda Parabat and the U.S. However, Smoak identified significant potential markets for body armor suits throughout Europe; but, she does believes Demon’s Head is producing at capacity and lacks resources to serve additional markets.

United States
Wayne Queen Kord Demon Total US
2011 60,000 20,000 20,000 100,000
2012 57,000 19,000 19,000 5,000 100,000
2013 54,000 18,000 18,000 10,000 100,000
Nanda Parabat
Free Sales Total Nanda Parabat
2011 2,000 2,000
2012 2,500 2,000 4,500
2013 3,000 4,000 7,000

According to Pennyworth, to support its continuing massive investment in research and development, Wayne Enterprises wants to raise the price of BAT® body armor suits in the U.S. The U.S. price for a BAT® body armor suit from any of the three domestic producers is approximately $8,000 (not including optional cape). However, neither Queen nor Kord have moved prices upward to offset lost sales. To meet the competition, Wayne has been unable to increase prices and has, therefore, reduced R&D. To cut costs, Queen has fired Chief Marketing Office Roy Harper and will be consolidating its three sales and distribution centers into its main campus in Star City.

Kord has taken another approach. To cut costs and improve its overall profitability, Kord has decided to start production of BAT® body armor in the Balkan country of Markovia. As on January 1, 2014, Kord has shifted 50% of its production from the U.S. to Markovia. All of the Markovia-produced goods will be exported to the U.S. and imported by Kord.

Thus, the expected 2014 industry snapshot is as follows:

United States Sales
Wayne Queen Kord Demon Total US
2014 50,000 17,000 10,000
10,000
13,000 100,000
Origin USA USA Markovia/USA Nanda Parbat

The Kord and Demon’s Head imports will be competing for the same few legal customers in the U.S. while the imports from Demon will also supply the criminal market (about 10% of the total U.S. sales).

In January of 2013, Barbara Gordon of Wayne Enterprises’ reported that she has identified the unauthorized use of the BAT® trademark on inferior body armor being sold in the U.S. market. Her sources have provided shipping and commercial documents indicating that the unauthorized BAT® products are coming from Nanda Parabat.

Ms. Loring called you into the meeting with Mr. Pennyworth to help determine whether any U.S. trade remedy laws might help Wayne Enterprises offset the commercial competition from Demon’s Head. Mr. Pennyworth ominously suggested that fending off the threat from Demon’s Head and Mr. al Ghul has larger implications for the fate of the nation. He asked that you consider all options involving the trade laws. According to Pennyworth, the CEO of Wayne Enterprises is considering other options involving independent acts of self-help.

Ms. Loring has asked you to prepare a memo outlining any potential administrative or judicial actions you see as possible support for Wayne Enterprises. For each potential action, she wants you to explain in as much detail as time permits:

  • Whether Wayne Enterprises, alone or in conjunction with other companies, has standing to commence the action.
  • In what forum is the action commenced and how.
  • What proof will be necessary to secure a remedy?
  • What data will be considered and how will it be used?
  • What problems or opportunities do you see for Wayne Enterprises and the other companies?
  • For administrative action, what judicial review is available?
  • What is the standard of review applied by the relevant courts?
  • Will Wayne Enterprises be likely to prevail?

For no credit other than respect and bragging rights, provide the correct first and last names and popular aliases of the CEOs of Wayne Enterprises, Queen Consolidated, and Kord Industries and the first name of Mr. Pennyworth.

Captain America: The Winter Soldier

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 a post on Defending Loki.

Introduction by James Daily: This post contains significant spoilers for Captain America: The Winter Soldier.  It’s a very good movie, and if you haven’t seen it you should definitely check it out!

Continue reading

Guest Post: Defending Loki

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 received a Criminal Justice degree from Xavier University and worked for 6 years as an auxiliary police officer. He later received his Juris Doctorate from the University of Cincinnati.

In the closing sequence of Marvel’s The Avengers, The World Security Council that evidently has the authority to order a nuclear strike on New York City, questions Nick Fury about the disposition of Loki. Calling Loki a war criminal, they ask Mr. Fury why he let Thor take Loki away when he should be answering for his crimes.

In this iteration of the Multiverse, evidently the bureaucracy of the United States has given way to the autocratic decisions of an infighting oligarchy that ignores due process and extradition laws. Well, at least Nick Fury does.

I think I would have rather seen a little more adherence to law and let Loki have his day in a U.S. Court. I say this, because as a criminal defense attorney, I believe there is a reasonable defense for Loki.

Loki’s Past, the Key to His Defense

Based on Loki’s actions and behavior, Loki’s best defense would have to be the truth—he is insane—but not a generic insane; Loki suffers from grandiose delusional disorder, a very complex psychosis where non-hallucination influenced delusions become core beliefs and the main motivation for daily activities.

Loki’s delusions began when he was very young. As his defense attorney, I would chronicle his delusions from early childhood on, showing how specific events helped create and support his grandiose delusions. I would produce expert witnesses and then introduce testimony from Loki’s past that would that Loki’s behavior is consistent with his delusions.

Establishing the Beginning of Loki’s Delusions

Loki was born the son of Laufy, king of the Frost Giants. Laufy kept his infant son in seclusion due to his non-giant size. Odin, leader of the Asgardian gods led his armies to victory against the Frost Giants where Laufy was killed in battle. Loki was discovered hidden in the giant’s main fortress. His size, considered diminutive by his own kind, was actually similar to Odin and other Asgardians. Odin took Loki back to Asgard and raised him alongside his biological son Thor.

Even though Loki was raised as a god in Odin’s court, he would eventually learn the truth; Odin, Loki’s father since he could remember, destroyed Loki’s true family. He would never be favored above Thor. He was a “god” by association, not by blood. Despite his home address, Asgardians did not respect him as they did Thor.

As Thor rose from favor to more favor, the contradictions in Loki’s circumstances drove him to seek out the dark arts and mischief.

Expert Witnesses

After going over his past, I would bring in a child psychiatrist as an expert witness who would explain how the tragic and ironic events in Loki’s life from infancy to adulthood led him to replace the realities of his life with delusions.

My next expert witness would be an adult psychiatrist who had interviewed Loki extensively. I would have him or her explain the complexity of delusion disorder to the court and describe Loki’s dominant delusions. Since I am not a psychiatrist, I don’t know everything a doctor would find. My assumption would be that Loki’s main delusions would be his belief that he is the rightful king of Asgard, that he is smarter than everyone, and that as king of Asgard he is the rightful ruler of Midgard (Earth).

Corroborating the Findings of the Experts

Expert witnesses are indispensable to back up an insanity plea but equally vital are the actions and statements of the accused that would back up the claims of the experts. My next witness would show examples of Loki’s behavior that matched the findings of my experts.

Some of the instances I would use would be the following:

  • Loki’s introduction in the Avengers, “I am Loki of Asgard, and I am burdened with glorious purpose.”
  • Loki demanding a crowd of people to kneel to him and when they do states, “Is not this simpler? Is this not your natural state? It’s the unspoken truth of humanity, that you crave subjugation. The bright lure of freedom diminishes your life’s joy in a mad scramble for power, for identity. You were made to be ruled. In the end, you will always kneel.”
  • You are, all of you are beneath me. I am a god, you dull creature, and I will not be bullied…
  • Bruce Banner’s assessment was also an interesting observation, “I don’t think we should be focusing on Loki. That guy’s brain is a bag full of cats, you could smell crazy on him.”

Interspersed between Loki’s moments of delusion are cases where he acts normal and even helpful. This is typical for grandiose delusion disorder since people suffering from the same exhibit normal behavior when they aren’t trying to advance their delusions.

Conclusions

This part of the trial would typically be quite lengthy because we are attempting to establish a severe mental illness that would explain his crimes and his mental state during that time. We would not dispute the facts of the case, only the intent of the accused and his ability or inability to distinguish the morality of his actions.

We may weave through our defense the “McNaughton rule.” This rule creates a presumption of sanity, unless the defense proves “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” The McNaughton rule is the standard for insanity in almost half of the states.

In 1972, the American Law Institute, a panel of legal experts, developed a new rule for insanity as part of the Model Penal Code. This rule says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” This new rule was based on the District of Columbia Circuit’s decision in the federal appellate case, United States v. Brawner, 471 F.2d 969 (1972).

One of the most famous recent uses of the insanity defense came in United States v. Hinckley, concerning the assassination attempt against then-President Ronald Reagan.

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.C. § 17). This is generally viewed as a return to the “knowing right from wrong” standard. The Act also contained the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241, which sets out sentencing and other provisions for dealing with offenders who are or have been suffering from a mental disease or defect.

The Verdict

Proving Loki’s delusion wouldn’t be difficult. However, on top of his grandiose delusion disorder is his Asgardian culture that believes in the glory of war, utterly destroying one’s enemies, and a totalitarian monarchy, that would further qualify him as being “unable to appreciate the nature and quality or the wrongfulness of his acts,” under Federal guidelines.

Even though John Hinckley, Jr. was found not guilty by reason of insanity, he has yet to be given unsupervised released from his hospital. Loki would most likely receive similar treatment after his verdict. However, maybe after 100 years of therapy and counseling Loki could be cured and lead a normal autocratic warrior life in Asgard.

“Holy Secret Recipe, Batman!”: Superheroes, the Misappropriation of Trade Secrets, and Economic Espionage

(This guest post was written by T. Stephen Jenkins, an associate in the Commercial Litigation Practice Group of Pepper Hamilton LLP.)

While Law and the Multiverse has featured several posts on various forms of intellectual property law (e.g. patent, copyright, and trademark), it has yet to discuss trade secrets . . . until now.  Trade secrets commonly appear in comic books, and given the recent concern with computer security and the alleged theft of trade secrets by domestic and international hackers, theft of trade secrets is a worthwhile topic to discuss.  (Warning:  minor spoilers ahead)

 

I. What IS a Trade Secret?

A person or company holding a trade secret, as its name suggests, seeks to safeguard information that is known by the person or company that is not readily known by anyone in the public.  Trade secrets can overlap with other forms of intellectual property, such as non-patentable inventions, trade dress, and “know-how.”  However, unlike many other forms of intellectual property where recovery of damages might be limited by lack of federal registration (disclosure) of the intellectual property (e.g. copyrights and patents), generally speaking, a trade secret holder may be able to recover damages if he or she maintained a reasonable level of protection to prevent non-disclosure of the trade secret.  The Uniform Trade Secrets Act (“UTSA”), which 48 of 50 states have adopted (or introduced) in some form, defines a trade secret as

(1) information, including a formula, pattern, compilation, program, device, method, technique, or process, that (2) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (3) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Uniform Trade Secrets Act §1, ¶ 4.

Trade secrets are common—and even famous—in the real world.  One of the most famous examples is the Coca-Cola secret recipe, which, for years has been guarded and has been the subject of threats of economic espionage.  Other examples of famous trade secrets include KFC’s “11 herbs and spices” and Google’s search algorithm.  Even less apparent examples of trade secrets have gained fame including the methodology for creating the New York Times Best Sellers’ list and Starwood Hotels’ (the owner of Westin hotel chain) luxury ambience.  Each of the above satisfies the three elements of the UTSA definition of a trade secret.

First, each example easily satisfies the information prong.  See  1-1 Milgrim on Trade Secrets § 1.01 (“The classic definition of trade secrets is stated at § 757, comment b, of the 1939 Restatement of Torts. . . . It covers any information (which can be embodied in a physical thing . . .”).  Second, because some have attempted to either unlawfully misappropriate and/or reverse-engineer the above trade secrets, it is probably safe to assume each trade secret has independent economic value in not being generally known.  Third, all are highly protected (though safeguarding all the details that create a Starwood Hotel’s luxury ambience is undoubtedly challenging).

Given the broad definition of a trade secret under UTSA, one can see how patterns, formulas, or devices in the Multiverse likely qualify as trade secrets.  The challenge is demonstrating whether these secrets have economic value.

The most famous comic book trade secret may be the Super Soldier Serum that created Captain America (and other characters), which many have tried to misappropriate (e.g. the Red Skull) and reverse engineer (e.g. the Green Goblin).  Though the Super Solider Serum was the product of government military research, there is a strong case that is has economic value.  Many villains and fictional enemies of the United States have tried to misappropriate the secret formula and use it either to gain a military advantage or to create a steady supply of mercenaries for hire.  Therefore, it is reasonable to assume that the Super Soldier Serum could meet the trade secret requirements.

Other examples might include:

  • Devices:  Spider-Man’s webshooters and Batman’s gadgets;
  • Programs/Patterns:  X-men Danger Room (depending on whether or not it is sentient) and Cerebro/Cerebra;
  • Methods/Techniques/Processes:  The method to access the Speed Force and the process of joining adamantium to Wolverine’s skeleton;
  • Formula: Vibranium and its derivative uses including Captain America’s shield, the Super Solider Serum, and the Anti-Life Equation;
  • Information/Compilations:  S.H.I.E.L.D.’s database on superheroes and villains and Justice League’s/X-Men’s/Avengers team-up database.

A superhero’s secret identity (within the Multiverse) may also be a trade secret, though not as easily established as the above.  See the Law and the Multiverse’s post on secret identities and privacy for an analogous argument.  For public superheroes such as those registered under the Marvel Universe’s Superhuman Registration Act, their secret identities may not enjoy trade secret protection.  However, other superheroes have had to protect their secret identities against those trying to kill them or sell their secret (e.g. Spider-Man).  They have also obtained benefits in their non-superhero professions from keeping their superhero identities secret (e.g. Peter Parker (photographer) / Spider-Man, Clark Kent (journalist) / Superman, and Matt Murdock (attorney) / Daredevil)).  Thus, for these superheroes, a secret identify might qualify as a trade secret.

 

II. What Laws Protect Trade Secrets?

In contrast to patents, copyrights, and trademarks, which federal law either establishes and/or strongly protects, trade secrets’ protection mostly arises from state law, though recently, international and federal protection of trade secrets has increased.  Most states have adopted UTSA in some form, which provides for civil actions for injunctive relief and damages within three years after misappropriation is discovered.  Two U.S.-signed treaties, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) and the North American Free Trade Agreement (“NAFTA”) also provide some protection.

Recently, the federal Economic Espionage Act (“EEA”), 18 U.S.C. §§ 1831 et seq.,  and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., have become enforcement tools against criminal misfeasors.  Both the EEA and the CFAA provide harsh civil and criminal penalties for the trade secret theft. See 18 U.S.C. §§ 1831 et seq. (providing for fines up to $10 million and/or 15 years imprisonment for economic espionage or trade secret theft); 18 U.S.C. § 1030 et seq. providing for unspecified fines and/or up  to 20 years imprisonment).

 

III. Who in the Multiverse Has Violated the EEA or the CFAA?

Though there are several examples of potential violations of the EEA and the CFAA in the Multiverse, a favorite comes from Marvel Entertainment’s popular Iron Man “Armor Wars” storyline (for a DC Comics example, see the mini-series aptly named The Hacker Files).

 

A. The Facts

“Armor Wars” is an Iron Man story arc that has appeared in many of Marvel’s comic book series.  In addition, it was featured in the second season of the Iron Man:  Armored Adventures televised cartoon.  In the Iron Man:  Armored Adventures version, Tony Stark is a teenager balancing being a superhero and a high school student.  Tony’s main antagonist is Obadiah Stane, who ousted Tony from the family company Stark International.

Stane, then Chair of the Board of Stark International, enlists Ghost to steal the Iron Man armor specifications.  Ghost goes to Tony’s hideout to steal the specs from Tony’s computer.  Stane also makes a deal with Doctor Doom, handing over the armor specs to Dr. Doom in exchange for help with creating a version of the armor for Stane.  Using Tony’s armor specs, Stane creates his own version of the Iron Man armor, becoming Iron Monger but is exposed as being involved with Ghost.  Ghost also sells the Iron Man armor specs to Justin Hammer (in this version a 21-year old spoiled rich kid), who creates his own version of the Iron Man armor, becoming Titanium Man.

 

B. Is There a Cause of Action Under the EEA or the CFAA?

While the cartoon takes a different approach to resolve the problem, consider whether a prosecutor or Tony could bring a claim under the EEA or the CFAA against (1) Ghost, (2) Stane, (3) Dr. Doom, and (4) Hammer (collectively, the “Misfeasors”).

 

1. Economic Espionage Act

Under the EEA, a prosecutor or Tony could bring claims of both theft of trade secrets (42 U.S.C. § 1832) and economic espionage (42 U.S.C.§ 1831).  The EEA makes it unlawful for a person to steal a trade secret and transmit it to a person who knows he or she is not authorized to possess it.  The EEA also makes it unlawful for a person to steal a trade secret with the purpose or knowledge that the delivery of the trade secret will benefit a foreign government (economic espionage).

The Misfeasors are all potentially liable for theft of trade secrets.  The EEA provides that “[w]hoever, with intent to convert a trade secret . . . steals, or without authorization,” or “appropriates . . . information” or “receives, buys, or possesses such information” or “attempts . . . or conspires . . . to commit any offense” described above shall be subjected to fines and/or imprisonment.  First, the Iron Man armor specs, at least in this storyline, are trade secrets  because they meet all the requirements under UTSA (see above Captain America/Super Soldier Serum analysis).  Moreover, the reason Stane and Hammer pay Ghost to steal the specs is because they want to derive economic value.  Second, the Misfeasors were involved in a conspiracy to misappropriate the specs:  Ghost stole the specs; Stane and Hammer bought the stolen specs, and Dr. Doom received the stolen specs.

However, not all of the Misfeasors are clearly liable for economic espionage under the EEA.  The EEA’s economic espionage provision is conceptually the same as its theft of trade secret provision, but requires that a misfeasor transmit a trade secret “intending or knowing that the offense will benefit” a foreign government or agent.  Here, the foreign government or agent is Latveria or Dr. Doom, respectively.

Hammer is likely not liable for economic espionage because it would be difficult to prove that he intended or knew that Dr. Doom would gain the armor specs.  In contrast, Stane and Dr. Doom are likely liable because they conspired for Dr. Doom to obtain the specs.  But the trickier case is Ghost who was happy to sell the specs to highest bidder.  Because it was Stane and not Ghost who gave the specs to Dr. Doom, Ghost can argue that he did not intend or know that his theft would benefit Dr. Doom.  However, given that “a conspiracy can exist even if each participant does not know the identity of the others or does not participate in all the events,” cf. United States v. Monroe, 73 F.3d 129, 131 (7th Cir. 1995) (internal citations omitted), Ghost’s argument may fail.

 

2. Computer Fraud and Abuse Act

The Misfeasors are also likely liable under the CFAA, which provides that “[w]hoever . . . knowingly accessed a computer without authorization or exceeding authorization . . . obtain[s] information that has been determined by [U.S. law] to require protection against unauthorized disclosure . . . [and] transmits . . . or conspires [to transmit]. . . to any person not entitled to receive it” will be subject to fines and/or imprisonment.  18 U.S.C. § 1030 (a)–(c).  The analysis under the CFAA is similar to the theft of trade secret analysis but requires that the information be obtained from a “protected computer.”  Under the CFAA a protected computer is either (1) a computer “exclusively for the use of a financial institution or the United States Government, ”18 U.S.C. § 1030(e)(2)(A), or (2) a computer used in “interstate or foreign commerce or communication,” 18 U.S.C. § 1030(e)(2)(B).  The latter requirement is a low standard to meet

Tony’s computer is a protected computer because it was used in interstate communication.  Thus, the Misfeasors could be facing years of imprisonment or at least hefty fines.  Dr. Doom may escape penalty given that, as the sovereign of his own country, he will likely not extradite himself for prosecution.  And if the U.S. government came after Dr. Doom or any of the Misfeasors, it would likely take years to reach a resolution, which is probably why the story arc’s writers resolved the issue in a much swifter way.

Using the EEA and the CFAA to pursue real-world misfeasors may increase in the coming years.  The EEA and the CFAA give federal prosecutors—and to a lesser extent civil litigants—broad power to prosecute alleged misfeasors, making even attempts to misappropriate trade secrets actionable.  “The Department of Justice has made the investigation and prosecution of corporate and state sponsored trade secret theft a top priority. . . . The FBI is also expanding its efforts to fight computer intrusions that involve the theft of trade secrets by individual, corporate, and nation-state cyber hackers.”  See Office of the President, Admin. Strategy on Mitigating the Theft of U.S. Trade Secrets at 7.

While there are many proponents and opponents of their use, there is no doubt that the Economic Espionage Act and the Computer Fraud and Abuse Act have had profound effects.  Of course, you can always come to Law and the Multiverse to see how the EEA and the CFAA continue to affect super powered individuals—and Pepper Hamilton LLP if you ever need real-world advice.