Category Archives: guest posts

She-Hulk: Was Wong in the Wrong?

(This guest post was written by Scott Maravilla. Thanks Scott! NB: This post includes minor spoilers for She-Hulk episode 3! And in case you’re wondering, I have been keeping up with the series, and I give it overall good marks for legal accuracy so far. The mistrial was exactly what would have happened, and large law firm partner’s Holden Holliway’s response to Jen’s request to pick her own assistant was pitch-perfect.)

In the She-Hulk: Attorney-at-Law episode “The People v. Emil Blonsky” (S1:E3), after testifying on behalf of Emil Blonsky at his parole hearing, Wong is called out by the chair of the California Parole Board for “admitt[ing] to facilitating a prisoner escape which is a crime.” At which Wong quickly escapes through one of his magic portals.  The chair is referring to California Penal Code 4550 which makes it a criminal offense punishable by imprisonment up to four years to “rescue any prisoner from any prison.”  The case appears cut and dry.  Wong used his portal power to break The Abomination out of his cell for an underground fight club tournament (See Shang-Chi and the Legend of the Ten Rings). 

            Not so fast, California recognizes necessity as an affirmative defense to helping someone, here The Abomination, break out of jail.  Necessity is where the conduct in question is undertaken to prevent a greater harm.  In the context of a prison break, while viable, it “is extremely limited in its application . . . because of the rule that upon attaining a position of safety from the immediate threat, the prisoner must promptly report to the proper authorities.”  People v. Lovercamp.  In Lovercamp, two women prisoners who were convicted of attempting to escape offered as their defense that they were being threatened by a group of fellow inmates.  The threats were described as “f**k or fight” which resulted in a fight followed by more threats.  Prison officials did nothing for the women’s protection.  As a consequence, they attempted to escape because they “felt they had no choice but to leave the institution in order to save themselves.”  On appeal, the court remanded the case back to trial to consider this defense. 

            While this case illustrates the defense, it is only from the point of view of the prisoner as opposed to an outside third party like Wong.  But, with superhuman law, comes superhuman defenses.  Let’s examine some of the key elements of necessity in the context of the work of the Sorcerer Supreme.  To prevail on a necessity defense, the person must have acted out of an objective actual knowledge that they were preventing some form of harm.  The objective aspect is determined by whether a reasonable person would also have acted in the same way under similar circumstances.  In this case, would an aspiring Sorcerer Supreme have broken The Abomination out of jail to guard our dimension.

            First, we must examine the importance of the Sorcerer Supreme.  As Screen Rant defines the job: “The Sorcerer Supreme carries the intimidating weight of protecting the world by maintaining a mystical barrier that guards against invasions from other realms.”  Scott Silson, What Does Sorcerer Supreme Even Mean & Why It Matters To Doctor Strange.   As Stephen Strange was snapped out of existence by Thanos, it was up to Wong to become the next Sorcerer Supreme to protect our world from, as we saw in Doctor Strange, very real mystical threats.  As Wong tells Jennifer Walters (who hopefully will be representing him), he “extracted [The Abomination] from the prison against his own wishes” because he “required a worthy opponent as part of [his] training to become Sorcerer Supreme.”  So if Wong does not break Blonsky out of prison to complete his training, the Earth would be in danger of imminent invasion from other realms like we saw in Doctor Strange with Dormamu.  

            But again, not so fast, necessity requires no reasonable alternatives.  Yet that may be the case here as well.  When She-Hulk takes place, other powerful beings are unavailable.  As we see in the post-credits scene in Shang-Chi and the Legend of the Ten Rings and episode one of She-Hulk: Attorney-at-Law, Bruce Banner is incapacitated from his own snap at the conclusion of Avengers: Endgame.  Similarly, Thor is off world having left with The Guardians of the Galaxy at the conclusion of Endgame. That reasonably leaves The Abomination as the remaining superhuman equivalent to test Wong’s powers.  Thus, Jennifer Walters can make a good case to a jury that Wong was just saving us from mystical threats by training to fill the role left vacant by Dr. Strange.  You be the jury.

Conflict Experts Fight About Star Wars

Law and the Multiverse contributor Scott Maravilla participated in a panel at DragonCon on Star Wars, negotiation, and conflict resolution in advance of a new book called (appropriately enough) Star Wars, Negotiation and Conflict Resolution. Check out the panel on YouTube!

Wanda’s Liabilities for the Westview Anomaly

(This guest post was written by Law and the Multiverse contributor Scott Maravilla. Significant spoilers in the main body of the post!)

The Marvel Cinematic Universe (MCU) does a good job of contemplating the ramifications on the civilian population from the actions of superpower beings.  After the Hulk and Iron Man laid waste to Sokovia in Avengers: Age of Ultron, the United Nations stepped in.  The Sokovia Accords became a (literally) divisive moment among the Marvel heroes.  The Accords were an attempt by the governments of the world to reign in superheroes and place them under their control. 

WandaVision continues to dwell on the harm a super human can wreck on regular people.  In this instance, the people of Westview, New Jersey.  WandaVision opens as an homage to the golden age of television.  The show references such luminaries as The Dick Van Dyke Show, Bewitched, The Brady Bunch, Family Ties, and Malcolm in the Middle.  Wanda and Vision, now married, settle into life in the suburbs over a multitude of television epochs.  Along for the ride is nosy neighbor Agnes and her ever absent husband, Ralph.  Ralph is reference to such sitcom characters as Buddy’s wife “Pickles” in Dick Van Dyke who is never seen.

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Tax Avengers Assemble: The Impact of Tax Reform on Superheroes

Jed Bodger, senior director of taxation at Sierra Nevada Corp, has written an excellent and in-depth discussion of the impact of the recent Tax Cuts and Jobs Act on superheroes and their associated businesses, including Tony Stark, Matt Murdock, Jennifer Walters, Bruce Wayne, Reed Richards, Diana Prince, Peter Parker, Charles Xavier, Hank Pym, and Janet van Dyne.  Originally published in Tax Notes, you can also read the piece here: Tax Avengers Assemble: The Impact of Tax Reform on Superheroes.

The finer points of tax law are definitely outside my area of expertise, so I was quite excited to see a tax attorney’s take on this subject!

Conflicts of Interest in the Representation by Matt Murdock of Alleged Criminals Apprehended by Daredevil

(This guest post was written by Scott Maravilla.  Scott writes at the Contract Law Profs Blog and is an alumnus at the PrawfsBlawg.  By day, Scott is an Administrative Judge at the Federal Aviation Administration, although all of the opinions expressed in this post are Scott’s own, and do not represent those of the FAA.  Thank you to Scott for this great post!)

Daredevil is the fictional alter ego of lawyer Matt Murdock in the Marvel Universe encompassing both comics and film.  As a boy, he was blinded by radioactive chemicals, which also left him with his remaining senses functioning at superhuman levels.  This also included a sort of “radar sense” that allows him to perceive his environment in a 360º manner, thus giving our hero an advantage in any fight.

Murdock continues to live in the Hell’s Kitchen neighborhood of New York City (now Clinton but we tend to overlook that fact) where, by night, he fights various nefarious supervillains (his arch-nemesis being Wilson Fisk, a.k.a, The Kingpin).  By day, Matt is an attorney.  He has his own law firm located right in Hell’s Kitchen with his partner, Foggy Nelson (Nelson & Murdock).  One of the emerging themes of the story is that Matt Murdock often finds himself representing the very villains he’s captured.  Thus, the issue arises whether is ethical for Matt Murdock to represent the alleged criminals he brought to justice as Daredevil.

Illuminating that question is a New Jersey Advisory Committee on Professional Ethics opinion:  Opinion 709 – Conflict of Interest: Municipal Police Officer Who Is an Attorney Engaging in Private Practice of Criminal Law, 185 N.J.L.J. 1202 (September 25, 2006), 15 N.J.L. 2166 (October 16, 2006).  The full text of the Opinion can be found here  and here.

The Advisory Committee was concerned with “the propriety of a municipal police officer who is an attorney affiliating with a law firm located in a municipality bordering that in which he serves as police officer” representing criminal defendants.  The Committee concluded that the representation of a criminal defendant by an officer within his or her municipality is prohibited under RPC 1.8(k).  While Daredevil is practicing in New York, not New Jersey, we’ll view the Advisory Opinion as persuasive (which it is).

Opinion 709 observes that the Rules of Professional Conduct (RPC) for New Jersey do not have a sanction for an appearance of impropriety.  Thus, the most obvious reason to dissuade Murdock’s practice is not available in the Garden State.  However, the appearance prohibition is included in many other jurisdictions including New York.

RPC 1.8(k) states that:

 A lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.

I recognize that Daredevil is not “employed by a public entity.”  However, for purposes of this post, we are assuming that Daredevil’s actions are sanctioned by the authorities (in the comics and television series, this is not always the case).  The public support for his endeavors helps to make the case more persuasive (it also opens up for some interesting debate in the comments section).

RPC 1.8(k) further provides that an “attorney who is employed by a municipality as a police officer shall not undertake representation of a client if there is a substantial risk that the attorney’s responsibilities to the municipality would limit the attorney’s ability to provide independent advice or diligent and competent representation to the client.”  RPC 1.7(a)(2) also prohibits representation where there is a “significant risk” that the lawyer’s ability to advise the client is “materially limited” by their responsibility to a third party.

The Opinion provides that “[m]unicipal police officers exercise full law enforcement powers within the territorial limits of their municipality.”  They have a duty, within their municipalities to enforce the law, “to take other steps to detect and apprehend violators of the law,” and assist with the prosecution.  The latter is very important because the work involved with the prosecutors may affect the ability of the lawyer to provide legal advice in another matter.

For further support in analyzing the conflict between lawyer and assisting the prosecution, the Advisory Committee relied upon the New Jersey Supreme Court holding in State v. Clark, 162 N.J. 201 (2000).  The Court “held that a municipal prosecutor may not represent a defendant in a criminal matter in the Superior Court of the county in which he or she serves as municipal prosecutor.”  The Court’s rationale was “that the integrity of the criminal justice system could be impaired when an attorney serves a dual role of municipal prosecutor and criminal defense attorney in the same county.”  Based on this line of reasoning, the Opinion notes that “the police officer witness [could give] direct testimony for the prosecutor one day in Superior Court, then appear as opposing counsel to the same prosecutor the next day in his role as defense attorney.”  Like Opinion 709, the Supreme Court declined to extend the ban beyond the jurisdiction at issue.

While not prosecuting, Matt Murdock is serving as the attorney for the alleged criminals in the very jurisdiction in which he apprehended them.  In Daredevil # 174, he represented Melvin Potter, a.k.a., Gladiator asserting an insanity defense.  In the recent Netflix series, the firm represented Frank Castle, a.k.a., The Punisher, who was also defeated by Daredevil.

Murdock’s representation does pose a “significant risk” of being “materially limited” by his obligations to a third party, i.e. Daredevil.  Can he really allow Melvin Potter to walk only to later combat him when he assumes his alter persona, Gladiator?  The same goes for the unremorseful Punisher who is himself an anti-hero.  Further, as in Clark, “the integrity of the criminal justice system could be impaired when an attorney serves a dual role of” a superhero.

Following the logic of Opinion 709 and Clark, the case against Daredevil is even stronger because the officers in question there do not purport to represent the perpetrator they themselves arrested.  It is not as if he is the defense attorney for supervillains captured by the Fantastic Four or Spiderman.

Interestingly, according to Opinion 709, RPC 1.8(k) and Clark may also prohibit representing criminal defendants in other jurisdictions.  It depends on the particular facts of the case.  So, Murdock is not completely off the hook when it comes to super-team ups (sorry, Defenders).

The one ray of hope for the firm of Nelson & Murdock is that Daredevil’s conflicts are not automatically imputed to Foggy Nelson.  The “conflicted lawyer must be screened completely from any representation by other lawyers in the firm.”  As Foggy Nelson knows the secret identity of Daredevil (at least in the Netflix show), this arrangement can be made.

Batman v. Superman and Import Licenses

(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.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

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Guest Post: Insurance Fraud is No Laughing Matter

(This guest post was written by Kevin Wheeler, an associate attorney at Schlichter & Shonack, LLP.  Thanks to Steven Jones for sending in the question, and thanks to Kevin for a great guest post!)

INSURANCE FRAUD IS NO LAUGHING MATTER

Cameron Kaiser tries to play the Joker

I. Introduction 

In episode 41 of Batman the Animated Series, Cameron Kaiser, a casino mogul, opens up a brand new casino, “Joker’s Wild.” Gotham is shocked to see the casino is themed after one of Gotham’s most notorious villains. However, after some investigation by the world’s greatest detective, it is discovered that *spoiler alert* the Joker theme was part of an elaborate scheme to bait the Joker into destroying the hotel. Mr. Kaiser’s overspending on the casino had left him on the verge of bankruptcy, so he hatched this plot to collect the insurance money. Despite Mr. Kaiser doing everything he could to facilitate an attack on the casino, including assisting the Joker in escaping from Arkham Asylum and even letting the Joker deal in his casino, in the end, Batman is able to thwart Mr. Kaiser’s plans and lock the Joker back in Arkham to escape another day.

The topic of this article is whether Mr. Kaiser is liable for insurance fraud. This article will not focus on Mr. Kaiser’s ability to obtain insurance against an attack by the Joker, as that was discussed in a previous post. Instead the focus will be on the legal ramifications of intentionally baiting the Joker with the “Joker’s Wild” theme. As Mr. Kaiser would contend, “The joker is a classic symbol, long associated with cards and games, [he] can’t help it if there is a passing resemblance to some criminal fruit cake.”

Insurance fraud is an issue affecting everyone. At its core, the insurance business is simply the market of risk. Insurers take upon themselves the risks of their insureds, who in return pay the insurers insurance premiums. This system works because the insurers are able to assess the risks and distribute the costs evenly amongst all of their insureds. Fraudulent claims change the risk assessment for insurance companies. Insurance companies are forced to transfer the additional burden onto their insureds in the form of increased insurance premiums.

Each state has enacted its own statutory scheme to prevent and punish insurance fraud. Generally, when dealing with Gotham city this blog has applied New York law, I will continue in this tradition and use New York law in my analysis.

II. Insurance Fraud

New York Penal Law § 176.05 defines the commission of a fraudulent insurance act as taking place when a person “knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, self-insurer or purported insurer or purported self-insurer, or any agent thereof, any written statement as part of… a claim for payment or other benefit pursuant to an insurance policy which he knows to: (i) contain materially false information concerning any fact material thereto; or (ii) conceal, for the purpose of misleading, information concerning any fact material thereto.” NY CLS Penal § 176.05.

On its own, the commission of a fraudulent insurance act constitutes insurance fraud in the fifth degree and is a misdemeanor. Insurance fraud rises to the level of a felony, when in addition to a fraudulent insurance act, the defendant also “wrongfully takes, obtains or withholds, or attempts to wrongfully take, obtain or withhold property,” the value of which determines the severity of the offense. NY CLS Penal §§ 176.05-176.30. Wrongfully taking insurance proceeds from the destruction of a $300 million casino would classify as insurance fraud in the first degree. NY CLS Penal § 176.30.

A. Knowingly and With Intent to Defraud

The first element of insurance fraud is that the fraud is committed knowingly and with the intent to defraud. “A person acts intentionally with respect to a result… when his conscious objective is to cause such result… A person acts knowingly with respect to conduct… when he is aware that his conduct is of such nature.” NY CLS Penal § 15.05. The question before us is whether Mr. Kaiser knew that his actions would result in a fraudulent act, and committed those actions with fraud as the intended result. Because direct evidence of a defendant’s mental state is rare, circumstantial evidence is sufficient.

Here, there is likely enough circumstantial evidence to show Mr. Kaiser acted with the requisite culpable mental state. The Joker and his crimes are well known to the citizens of Gotham city. Knowing of Joker’s tendencies toward destruction, Mr. Kaiser aided the Joker in his escape from Arkham Asylum on the same day the Joker’s Wild casino was unveiled. Mr. Kaiser clearly knew that the Joker would seek to destroy the casino and that thereby Mr. Kaiser could collect the insurance money. Similarly, this evidence shows that Mr. Kaiser’s acted with intent to defraud. There is no other reason Mr. Kaiser would help the Joker escape and even allow the Joker to act as a dealer in the casino.

Mr. Kaiser’s aid to the Joker is not the only evidence of his culpable mental state. We also discover through Batman’s sleuthing that the original theme for the casino was a medieval theme. As Mr. Kaiser is sure to argue, the joker is a perfectly reasonable theme for a casino, so the change in theme was innocent. The theme change, however, was recent enough to the opening that instead of a complete remodel, they simply placed joker wallpaper on top of knight wallpaper. This shows that it was not planned to be the theme of the casino, which puts into question his motive behind the switch. Combine that with the history of the Joker in Gotham city and his intentions become more clear.

There is also evidence of financial motivation to commit fraud. Mr. Kaiser basically bankrupted himself on this casino. He would not likely be able to make back the money he spent on the casino, no matter the theme. Choosing the Joker’s Wild theme in Gotham, however, would also likely be seen as a poor business decision. At the unveiling, the citizens of Gotham are disgusted by the choice of theme. Given the traumatic experiences most of them have likely had with the Joker, it would be foreseeable that this particular theme would cause potential patrons to avoid the casino.

These circumstantial facts taken together likely show that Mr. Kaiser knew that choosing the Joker’s Wild theme as well as breaking the Joker out on the same day as the unveiling would likely result in the destruction of the casino. Despite the known result, Mr. Kaiser still themed his casino after the Joker and broke the Joker out of the asylum which, combined with Mr. Kaiser’s financial state, shows an intent to defraud.

B. Prepares a Statement Concealing a Material Fact

The next element of the crime of insurance fraud is preparing a statement concealing a material fact. Here, Mr. Kaiser has obviously not presented or even prepared any sort of written statement, as he was foiled by the caped crusader before his scheme could be accomplished. Mr. Kaiser is not off the hook, however.

The absence of a written statement will not preclude a prosecution for attempted insurance fraud. In People v. Vastano (App.Div. 1986) 117 A.D.2d 637, 637 [498 N.Y.S.2d 87, 87], the court found sufficient proof of attempted insurance fraud even though no claim had been submitted. In that case the defendant plotted out a crime of insurance fraud in which he arranged to have the car of one of his coconspirators disposed of; so they could split the insurance money. The coconspirator, however, never reported the car stolen to the insurance company. The court held that “The necessary overt act for an attempt need not be the final one towards the completion of the offense. Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense.” People v. Vastano, 117 A.D.2d at 637.

Here, Mr. Kaiser has acted to the extent that he would “commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense.” Batman was the interruption that both prevented the destruction of the hotel and the insurance fraud. Similar to the Vastano case, Mr. Kaiser had almost completed his portion of the fraud. Without Batman’s “interruption” the Joker would have destroyed the casino, and Mr. Kaiser could have collected the insurance money.

III. What If Mr. Kaiser Had Not Helped the Joker?

If we change the episode slightly, this time removing Batman’s interruption and Mr. Kaiser’s aid to the Joker. What would be the result if Mr. Kaiser, had simply realized he had spent far too much on the Casino, and simply changed the theme to Joker’s Wild knowing the Joker would destroy it. Here, the facts are a little closer as Mr. Kaiser is no longer an accomplice to the arson of the casino. However, he is still would likely be guilty of insurance fraud if he seeks to collect the insurance money on the destroyed casino.

“The essence of insurance fraud is the filing of a false written statement as part of a claim for insurance.” People v Alfaro, 108 A.D.2d 517, 520, affd. 66 N.Y.2d 985; see also People v. Michael (App.Div. 1994) 210 A.D.2d 874 [620 N.Y.S.2d 637], holding that although the defendant was found not guilty of arson, it did not mean that she could not be convicted of third degree insurance fraud where proof was overwhelming that defendant was aware that fire was intentionally set to collect on insurance policy.)

Even if Mr. Kaiser had simply changed the theme of the casino in order to entice the Joker to destroy it, he would have to either a) misrepresent or conceal his change of theme, or b) report the change of theme to the insurance company.

If Mr. Kaiser elected to simply misrepresent or conceal the change of theme, then he would be committing “the essence of insurance fraud” by filing a false written statement as part of a claim. Even if his policy would have covered the loss of the casino had he been truthful, he would still be guilty of insurance fraud. In People v. Stevens, the defendant falsely reported to her insurer that her truck had been stolen, when in fact it had been driven into a pond. The court in that case held that “The commission of the crime of insurance fraud is not dependent upon whether the insured is ultimately entitled to be paid under the policy; it is committed when the insured knowingly files false information with the carrier in an attempt to collect under the policy.” So any material misrepresentation or concealment to an insurance company constitutes insurance fraud.

So what if Mr. Kaiser was truly innocent, and had changed the theme of the casino, not to bait the Joker, but because he truly believed that “The joker is a classic symbol, long associated with cards and games.” New York and other states require that all insurers must obtain an anti-arson application for all property insurance policies covering peril of fire or explosion. NY CLS Ins § 3403. An anti-arson application is an application for insurance or renewal of insurance, that includes certain questions that the applicant must answer in addition to the basic information normally supplied to an insurer. NY CLS Ins § 3403(a). This information includes financial and background information about the property and the applicant. NY CLS Ins § 3403(c).

The improvements entailed with the change of theme of the casino would also need to be insured. Therefore, Mr. Kaiser would have had to complete an anti-arson application for the improvements. During the application process, the property would need to be appraised and inspected. During these inspections, the insurance company would likely find out the nature of the improvements. If Mr. Kaiser were honest in this anti-arson application concerning his financial condition and the financial condition of the property, and the insurance company still chose to insure him, then a court would likely find that the insurance company accepted the risk of the Joker destroying the casino and Mr. Kaiser could collect. All that being said, an insurance company is not likely to insure a Joker’s Wild casino in Gotham.

 

Superman and Supergirl: Environmental Refugees

(This guest post was written by Kean Zimmermana recent graduate from Michigan State University College of Law.  This post is an in-depth exploration of Superman and Supergirl’s environmental refugee status touched on in a previous article. The analysis in this article has changed to reflect the Supergirl in the TV series and recent New Zealand Court decisions. That article can be viewed online at L&F Magazine.)

Introduction

The writers and contributors who have posted on Law and the Multiverse, as well as other legal scholars, have taken the opportunity to note the various legal issues that superheroes and villains face when it comes to the intricate web that is immigration law.  Recent developments in the world have lead to an increase in refugees, especially refugees forced from their homes not just by people, but by the environment.  Kryptonians would likely be counted among the other environmental refugees.  Similarly the survivors of Krypton would also struggle with many of the same setbacks.

The United States has instituted laws addressing refugees since 1948.[1]  In 1948, the  United States government enacted the first law for admitting persons fleeing persecution.[2]  The law permitted 205,000 refugees to enter the United States over the course of two years.[3]  It was not until 1951 that the first steps were taken to recognize refugees on an international scale.[4]  In 1951, the United Nations put forth the 1951 Refugee Convention, which is the underpinning of most refugee law in the world.[5]  The Convention defines refugees, their rights, and what obligations states have to refugees across the globe.[6]  The same Convention states that individuals may seek asylum if they have a well founded fear of persecution on account of one of the five pre-approved grounds.[7]  Those are race, religion, ethnicity, political opinion, or membership in a particular social group.[8]  While most countries that have adopted the convention’s regulations to govern refugee law, those same laws have not been updated to keep pace with current trends.  Currently, there is a gap between what the law provides and what is needed.[9]  The widening gap is most certainly the case of what is occurring with environmental refugees.

A. Environmental Refugees

Environmental refugees are growing in number across the globe, but both domestic and international laws have yet to grow along with the refugees.  According to the Organization for Economic Co-operation and Development, an environmental refugees is “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.”[10]  These refugees are also known as “displaced people” or “climate refugees.”[11]  Environmental refugees are not a new phenomena, yet in recent years there has been an increase in attention to climate refugees.  This is correlative to the changes in climate that have occurred in recent years.[12]

I. Superman and Supergirl’s Not so Super Problem

A. Superman: A True Illegal Alien

There is no question that Superman, or rather Clark Kent, is not from this planet.  In fact he embodies the term “illegal alien” in that he never properly migrated to this country, or at least did not do so through official channels.  His provenance can be forgiven given the fact that he was sent by his parents from the planet Krypton.[13]  The reasons for the planet’s demise have varied over the years.  This post, however, adopts the theory from the Man of Steel movie.  In the Man of Steel, Krypton’s resources were over-consumed to the point that the planet imploded on itself.[14]   Environmental disaster on a planetary scale obliterated Krypton in its entirety.[15]

As a baby, young Clark could not be expected to file his asylum petition on his own.  The Kents adopted Clark after finding him in their field.[16]  The two possible ways this would occur today would be if Clark had been legally adopted as an abandoned child, or if the Kents had somehow managed to obtain forged documentation for Clark.  However, Clark would still have to file his claim for asylum the year after he turned 18.[17]  Clark would have clearly exceeded this statutory limitation as there is no evidence he has ever applied for asylum.[18]  Typically the law requires asylum seekers to affirmatively apply for asylum within one year after entering the United States.[19]  Recently, in a Board of Immigration Appeals decision, the court stated that an applicant’s age can be taken into consideration when determining if they can be exempted from the one year filing rule.[20]  Since there is no evidence that Clark ever attempted to apply for asylum this may have no bearing whatsoever.

Somehow Superman has the ability to renounce his United States citizenship in Action Comics 900.[21]  Renouncing American citizenship is governed under  section 349(a)(5) of the Immigration and Nationality Act.[22]  The backlash after this comic book was released was so huge that publisher DC Comics backtracked a week later and announced the issue itself was standalone.[23]  Being a standalone issue meant no further issue would explore Superman’s discarding of his American citizenship.  At least in this respect, it can be assumed that he has United States citizenship.  There is a chance that Kent was granted citizenship under the foundling statute even though it is rarely used.[24]  Based on this law, because Kent’s parentage was unknown as he entered the United States under the age of five, and since he hid his secret well after the age of twenty-one, he could possibly have attained legitimate United States citizenship through the statute.[25]

There is little debate that Superman had to leave Krypton before its ultimate implosion.[26] While Superman has never formally been considered a refugee, he fits the basic understanding of an environmental refugee in that he literally has no planet to return to.  Since it is presumed from DC that he somehow has citizenship, he does not have to examine this question.[27]  The same cannot be said for his cousin Kara Zor-El, also known as Supergirl.

B. Supergirl’s Dilemma

While Superman might want to file for Supergirl’s entry into the country through legal channels, there is no “cousin” spot for admitting someone into the country as a family member (he could only seek to admit a parent, spouse, child, or sibling).[28]  The most logical option at that point would be Deferred Action for Childhood Arrivals (DACA).[29]  Supergirl’s biological age is only thirteen given that she was trapped in the Phantom Zone, a place where time moves slower than on Earth, after she left Krypton.[30]  However, her actual age is suggested to be much greater given that she was stuck in the Phantom Zone while Superman grew into a man (her age after arriving in the United States is an estimated thirty-seven years).[31]  The United States government might not consider her young enough to qualify for DACA based on the elevated age. Biologically she would have entered the country before turning sixteen, but she would have been alive for thirty-seven years.  As such, Superman would likely seek either asylum or withholding of removal for his cousin.

The problem then exists is that Supergirl cannot claim asylum based on the fact that her planet no longer exists.  Actual displacement based on loss of home due to an environmental disaster would seem to fall under the concept of an environmental refugee, but as of right now environmental refugees are not recognized under most international laws.  Environmental refugees do not appear to be eligible for asylum solely based on their status as an environmental refugee.  Most countries base their refugee law on the 1951 Refugee Convention.[32]  As previously mentioned, the Convention prescribes five grounds upon which an individual can receive asylum.  Those grounds are race, religion, nationality, political opinion, and a particular social group.[33]  Supergirl must also be suffering from some kind of “persecution” that is based on one of the five grounds.[34]

In this case Supergirl’s persecution is simply that she is unable to return to her home planet of Krypton.  She lacks the opportunity to avail herself of the Kryptonian government since it is non-existent.  She would seek admittance to the United States, but she does not fall into a persecutorial nexus based on any of the five grounds.  At this point, the United States Immigration and Customs Enforcement (ICE) would contemplate whether or not it could forcibly eject Supergirl from the United States.  To do so would mean extreme costs on the United States government as simply containing her would likely cost upwards of $20 million.[35]  Even if Supergirl were to be ejected from the country, she would have nowhere else to go.

C. Super and Stateless

In effect Supergirl is actually a stateless person.  As of now the United States has not signed on to any of the major international conventions which attempt to reduce the number of stateless persons.[36]  Currently, the United States is lacking a basic framework to deal with stateless people, so most of its efforts are merely stopgap measures.[37]  The absence of a framework often leaves stateless persons in a position of limbo for excessive periods of time, especially if they no longer have a country to return to or no country which will accept them.[38]  Supergirl would likely be in a similar position as Krypton no longer exists.  After a determination is made that she either cannot return, or that it is too expensive to deport her, the government would probably require Supergirl to make routine reports to the Department of Homeland Security.[39]  Although she might be able to receive a work permit, if she were to ever leave the borders of the United States, border patrol could then deny her readmission.[40]

As a last ditch effort, Supergirl might try to claim asylum on the basis of her membership in a particular social group.[41]  She could argue that her particular social group is that of a Kryptonian who survived the destruction of the planet of Krypton.  However, such a group has yet to be acknowledged by the United States government.  Even then the persecution would have to be a form of past persecution.  Different circuits within the United States recognize different grounds or acceptable forms of past persecution.  Thus far, none have accepted the idea of “loss of a home” as a viable form of past persecution.  In fact, there is no law stating that the loss of a country, let alone a planet, amounts to persecution.  One of the only individuals in the world to make such an argument thus far has had little success.

II. Tuvalu: An Island and its Implications for Immigrants

Ioane Teitiota is the first man in New Zealand to seek asylum under the label of environmental refugee.[42]  Teitiota has been living in New Zealand since 2007 after leaving his Tuvaluan home; he believes his home will become uninhabitable before too long.[43]  Tuvalu is a Polynesian island nation located in the Pacific Ocean.[44]  The island is located halfway between Australia and Hawaii.[45]  Although very unassuming, the island is predicted to be the first island to succumb to rising sea levels.[46]  In 2009, there were many trees swallowed by the rising salt water, but as of 2012 whole parts of the island were consumed.[47] The highest point of the country above sea level is only a few meters high.[48]  Before the island is swallowed by the sea there are many Tuvaluans who are concerned that encroaching salt water will prevent any type of agriculture from persisting on the island.[49]  To that end, many Tuvaluans have fled their country, but not all have succeeded in trying to relocate.

The Court of Appeals in New Zealand denied Mr. Teitiota’s  application for Asylum in 2014 stating that his case was “fundamentally misconceived” and that it would “stand the [UN refugee] convention on its head.”[50]  While Teitiota argued that he would be facing “passive persecution” as a result of his government being unable to “protect him from climate change’s effects,” the court remained unpersuaded.[51]  Ultimately, the court felt that Teitiota’s arguments were “novel,” but “unconvincing” as granting him asylum would simply open up opportunities for millions of people living in low-lying countries to seek the same kind of asylum.[52]  To avoid a flood gates situation the Court affirmed the lower court’s decision to deny Teitiota’s claim for asylum.  The Court’s decision meant that Mr. Teitiota, his wife, and his three children born in New Zealand would have to return to their native home of Tuvalu.[53]

It seemed strange then that a different family from Tuvalu was granted New Zealand residency only months later after making similar claims.[54]  The family’s petition was the first “successful application for residency on humanitarian grounds in which climate change had featured.”[55]  The Court claimed the second case was different since the family had strong ties to New Zealand.  Like Mr. Teitiota’s claim, the second family was denied initially for not meeting the standards of the refugee convention.[56]  However, the second family successfully won their subsequent appeal by basing their argument on humanitarian grounds.[57]  In the July 2014 decision, the Court found that returning the family back to Tuvalu would be “unjust and unduly harsh.”[58]  The largest difference between the two applicants is the second Tuvaluan family has three generations of relatives living in New Zealand, increasing their ties to the community.[59]  Supergirl may be able to raise a similar argument since she herself has ties to the United States in the form of her cousin Superman.  This would likely fail though since Superman himself is only one man, not three generations of familial ties.  Furthermore, the United States has done very little within its own borders to make immigration exceptions for environmental refugees from abroad.

III. What the United States is doing for Environmental Refugees

There is no official legal framework to address the problems environmental refugees face when they try to enter the United States.  The United States has taken some steps to acknowledge this unique group of refugees immigrating into the United States.  The Immigration Act of 1990 does address granting temporary protection status to such refugees.[60]  Temporary protection status is granted when:

There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’ and when ‘the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state.[61]
Temporary status only applies to individuals who are already inside the United States at the time of the disaster.[62]  The temporary status includes six months of protection and the ability to work, but it does not allow for the admission of the claimant’s spouse or family.[63]  Temporary protection status was granted to victims of Hurricane Mitch in 1998 and victims displaced by the Montserrat volcano explosion in 1997.[64]  However, the granting of temporary protection status is discretionary.[65]  In addition to only protecting those who were environmentally displaced while they were present in the United States, as of 2014 only citizens of Haiti (earthquake), Honduras (hurricane Mitch), Nicaragua (hurricane Mitch), and El Salvador (earthquakes) were able to get temporary protected status for environmental events. [66]  There is no legal protection in the United States that creates a path to permanent status for environmental refugees.  As a country, the United States’ ability to protect those persons displaced by climate change is limited since its laws do not offer any substantive relief to those fleeing environmental disasters or rising sea levels outside of the United States.  In this lack of framework, the United States is consistent with many other international states who do not have legal frameworks to address the problems faced by environmental refugees.

Conclusion

In the end Supergirl will face the same fate as millions across the globe.  Without an adequate legal framework to deal with the surge in environmental refugees that is predicted to come in the next few decades, stopgap measures will be used to treat the environmental refugee crisis on too small a scale.  Excessive stopgap measures will lead to a bottleneck in the immigration system.  Supergirl will likely not be deported because of the sheer cost that would entail, and the fact that there is likely no Kryptonian agreement with any other country that would allow her to reside there.  In all likelihood, she will stay in the United States, but will not be able to ever qualify for United States citizenship since she falls within a grey area of the law.  This might not be as much of a problem, but if she were to ever save anyone outside of the United State’s borders then the United States could deny her readmission to the country. This would drastically limit the range of her allowable Superhero activities.

 

[1] History of U.S. Immigration Laws, Federation for American Immigration Reform, http://www.fairus.org/facts/us_laws

[2] Id.

[3] Id.

[4] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (done at Geneva, 28 July 1951), as amended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, T.I.A.S. No. 6577, 19 U.S.T. 6223, done at New York, 31 Jan. 1967.

[5] The 1951 Refugee Convention, http://www.unhcr.org/pages/49da0e466.html

[6] 1951 Refugee Convention, supra note 5.

[7] Id.

[8] Id.

[9] Climate Refugees, Michael P. Nash, LA Think Tank, http://www.snagfilms.com/films/title/climate_refugees

[10] Organisation for Economic Co-operation and Development, https://stats.oecd.org/glossary/detail.asp?ID=839

[11] National geographic, Climate Refugee, available at http://education.nationalgeographic.com/education/encyclopedia/climate-refugee/?ar_a=1 , last visited Apr. 20, 2015.

[12] Climate Refugees, supra note 9.

[13] Man of Steel, Zack Snyder, Warner Bros., 2014.

[14] Id.

[15] Id.

[16] Id.  (Adopt is likely a tentative term,  seeing as the Kents probably did not file the appropriate adoption paperwork as they did not want to risk the safety of their young child).

[17] INA §208(a)(2)(B).

[18] Id.

[19] INA §208(a)(2)(B).

[20] BIA Decision, Mar. 29, 2013, http://www.refugees.org/resources/for-lawyers/asylum-research/youth-and-1-year-bar-bia.pdf,

[21] Paul Cornell, Action Comics 900, (DC Comics, 2011).

[22] INA §349(a)(5).

[23] DC Backtracks Superman Renouncing His Citizenship, May 5, 2011, available at http://www.comicbookmovie.com/fansites/luffycapri/news/?a=36606, last visited Apr. 18, 2015.

[24] Ryan Davidson, Superheroes and Immigration Status, Law and the Multiverse, Dec. 22, 2010, available at https://lawandthemultiverse.com/2010/12/22/superheros-and-immigration-status/, last visited Apr. 20, 2015.  (James Daily Commentary).

[25] Id.

[26] Man of Steel, supra note 13.

[27] Paul Cornell, supra note 21.

[28] Bobbie Masters, Frequently Asked Questions About Immigration, Masters Law Firm, P.C., available at  http://www.coimmigrationlawyer.com/faqs.html

[29] USCIS, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[30] Supergirl, Warner Bros. Television (2015)

[31] Id.

[32] 1951 Refugee Convention, supra note 5.

[33] Id.

[34] Id.

[35] Matt Hershberger, Is Superman Undocumented?, http://themigrationist.net/2013/08/21/is-superman-undocumented/

[36] See Convention Relating to the Status of Stateless Persons, opened for signature Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960 ) ; see also Convention on the Reduction of Statelessness, opened for signature Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975)

[37] Mikhail Sebastien, Stateless in the United States, http://www.washingtonpost.com/opinions/stateless-in-the-united-states/2013/07/04/ae4c7a72-debe-11e2-b2d4-ea6d8f477a01_story.html

[38] Id.

[39] Id.

[40] Id.

[41] 1951 Refugee Convention, supra note 5.

[42] Kathy Marks, World’s first ‘climate change refugee’ has appeal rejected as New Zealand rules Ioane Teitiota must return to South Pacific island nation of Kiribati, http://www.independent.co.uk/news/world/australasia/worlds-first-climate-change-refugee-has-appeal-rejected-as-new-zealand-rules-ioane-teitiota-must-return-to-south-pacific-island-nation-of-kiribati-9358547.html

[43] Id.

[44] Climate Refugees, supra note 9.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Marks, supra note 42.

[51] Id.

[52] Id.

[53] Id.

[54] Amy Maas, Tuvalu Climate Change Family Win NZ Residency Appeal, The New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Maas, supra note 54.

[60] An EU Strategy on Adaptation to Climate Change, Commission Staff Working Document, European Union (2013), 17 (internal quotation marks omitted).

[61] Id.

[62] Id.

[63] Id.

[64] Strategy on Adaptation, supra note 60.

[65] Id.

[66] Madeline Messic & Claire Nergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that is Less Than Permanent, http://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

(This guest post was written by Kevin Lelonek as a response to a comment on this post from way back in January, 2012.  In his own words, “Kevin is a dual degree student pursuing his J.D. and M.B.A. in Buffalo, New York. He’s in his last year of the program and looks forward to starting his career. And of course, he’s a total nerd.”)

 

Batman and the Constitution: How can the Gotham D.A. convict criminals captured by Batman?

In the comments to a previous article about Batman’s relationship to the “State,” Crazy Jay raised some serious questions about how the Gotham District Attorney is able to prosecute Gotham’s criminals when Batman is involved in the apprehension of those criminals. Crazy Jay asked “how can the District Atty. Prosecute a criminal if the Batman had his mitts all over the evidence?” Crazy Jay asked about how Due Process, Miranda Rights, Cross Examinations, the “Fruit of the Poisonous Tree” doctrine, confessions, and Search Warrants, the staples of criminal law, work in a world with Batman.  How indeed? So let’s get started.

  1. Another Night on Patrol

The simplest case in which Batman stops crime infringes on no Constitutional protections. Consider the following: two masked men armed with shotguns enter a bank. One of the tellers quickly signals the silent alarm. The two armed men wave their shotguns around and demand the bank’s patrons lie face down on the floor. They turn their shotguns to the tellers and demand that the tellers empty their drawers. The armed men take the money from the tellers’ drawers and threaten the bank manager to open the safe. Before the armed men can leave with the money Batman intervenes, disarms the robbers, ties them up, and leaves them for the police. The police arrive as Batman disappears in the shadows.

Generally, criminal Constitutional protections only operate against the government. Due process, depending on which theory of it we are talking about, is a broad concept. We can conceptualize it as a series of steps and attendant procedures that the government must take to obtain a conviction.[1] For example, a police officer needs probable cause before he can arrest someone, and the government must prove each element of the crime beyond a reasonable doubt to obtain a conviction.[2]

Certainly in the above example the police that first arrive at the bank have probable cause to arrest the two armed men that Batman tied up.[3] At this point the two suspects are still masked and tied up, the two shotguns are presumably on the bank floor somewhere out of reach, and the police were summoned to the bank by the silent alarm. Statements by the patrons and employees provide further evidence of crime against the two men, making for a lawful arrest. Upon arresting the suspects, the police must read the suspects their Miranda rights. If the officers fail to do this, they risk having the suspects’ subsequent statements or confessions excluded at trial.[4]

In this situation there is nothing stopping Harvey Dent (pre-acid) from prosecuting the armed men. The fact that Batman thwarted the robbery does nothing to alter the fact that the two men forcibly stole property. To commit third degree robbery in New York, a person must: (1) wrongfully take, obtain, or withhold property; (2) with the intent to deprive the owner of such property or to appropriate the same for himself; and, (3) threaten another with the use of immediate physical force to prevent resistance to the taking of property or to compel the owner of the property or another person to deliver the property. [5]

Even if there were no surveillance cameras, the patrons of the bank and the bank’s employees can present evidence against the robbers sufficient to establish the elements of the crime.  Testimony to the facts above establishes that the armed men: (1) wrongfully took and obtained property that did not belong to them, the bank’s money; (2) intended to deprive the bank of its money and to appropriate the money for themselves when they demanded it from the tellers and bank manager; (3) used their shotguns to threaten the immediate use of force to prevent resistance to their demands. Further testimony to the effect that Batman intervened, disarmed the masked men, incapacitated them, tied them up, and left them for the police, who arrived shortly thereafter to unmask the armed men in front of the patrons and employees, establishes the identities of the defendants as those of the two armed men. The sum of all of this testimony seems to carry the prosecution’s burden of proof.

Of course the defendants are still entitled to their Sixth Amendment rights to put on a defense and to confront witnesses.[6] But Batman’s intervention does not alter these rights in any way: he is not preventing the defendants from presenting their own evidence in court or from cross examining the government’s witnesses against them. Assuming the defendants do not rat each other out for plea deals, we can imagine them putting on a common defense that attacks the credibility, perception, and memory of the witnesses with the intent to cast doubt on whether the defendants were in fact the robbers unmasked by the police. Lacking a population of witnesses that has sudden memory loss or that was lacking its required corrective eyewear (think My Cousin Vinny) it’s safe to say Dent gets his conviction on this one.

  1. Fruit of the Poisonous Tree

The “Fruit of the Poisonous Tree” doctrine only applies to evidence that is discovered as a result of a violation of the Fourth Amendment.[7] The doctrine is an exclusionary rule that operates to preclude the introduction of evidence that was obtained as a result of a bad “search” or “seizure” (i.e. a search not based on a warrant or an arrest without probable cause).[8] Since the Constitution only restricts government action, it seems that the “Fruit of the Poisonous Tree” doctrine would never apply to Batman. But this raises the question of how evidence procured by Batman, which he then turns over to the police, would be handled. Consider Batman: The Long Halloween when Batman leaves Carmine Falcone’s ledger on the GCPD HQ’s rooftop after meeting with Commissioner Gordon and Harvey Dent there.[9] Seemingly, the issue the government would face is establishing the ledger’s authenticity, that the ledger is in fact Carmine Falcone’s and that it details his illegal operations.[10] Assuming Batman is not testifying, the government would need to produce a witness who could identify the ledger as the ledger Carmine Falcone used to document his criminal enterprises.

  1. Confessions

Under the Federal Rules of Evidence, hearsay is generally not permissible testimony.[11] Hearsay is defined as a statement that the declarant makes while not testifying at the current trial or hearing.[12] However, a statement made by an opposing party is not considered hearsay. [13] Thus, a criminal defendant’s statement is not hearsay because the defendant is the opposing party to the prosecution in its case against the defendant. Accordingly, the confession Batman obtains from a suspect is admissible evidence at court. Getting the confession into evidence is another matter. Likely, Batman will not be testifying at the criminal trial. Unless Batman obtained the confession in the presence of another, who can testify to its substance, it probably won’t be used as evidence. Even if admitted, there is a credibility issue with the confession: if Batman “beat” the confession out of the defendant, the defense can attack its credibility by arguing that the confession was coerced.

  1. Search warrants

Now, the best (most interesting) for last: search warrants. In the ordinary case, police need a search warrant based on probable cause to search for and seize evidence.[14] Although inapplicable to the bank example above, we can imagine a situation in which Batman infiltrates a warehouse and identifies a large hidden cache of Penguin’s weapons. Batman alerts Commissioner Gordon to the location of the weapons. Before the GCPD can search the warehouse and seize the weapons it must first obtain a search warrant from a magistrate judge. In the usual case, a police officer who has witnessed what she suspects to be evidence of crime appears applies to a magistrate for a warrant based on what she witnessed. In the present case, Commissioner Gordon has not personally witnessed the weapons cache.[15] Being an honest cop, the Commissioner will not lie under oath to obtain a warrant. Luckily, under the Constitution the police, and our Commissioner, can obtain a warrant based on a tip from a reliable informant!

A search warrant based on an informant’s tip (hearsay) requires that the totality of the circumstances indicate to the magistrate judge that there is a fair probability that contraband or evidence of crime will be found at a particular place. [16] The totality of the circumstances test takes into account the truthfulness and accuracy of the informant, as well as the basis of the informant’s knowledge.[17] Since this test is not rigid, probable cause could be found on facts provided by an informant either because the informant has been reliable in the past or because evidence of the informant’s basis of knowledge of those facts is strong.[18]

Lacking independent police obtained evidence of crime[19] (i.e. Harvey Bullock sees the cache of weapons himself), Gordon can appear before the magistrate judge (or provide an affidavit) to testify that: (1) he received a tip that there is a large cache of weapons in a warehouse in Gotham; (2) the warehouse is owned by Penguin; (3) the tip was provided by an informant with the alias “Matches,” (a named informant because Commissioner Gordon regularly relies on tips received from Batman); (4) “Matches” has supplied truthful and accurate tips in the past (meaning he has given tips in the past that resulted in the GCPD finding what “Matches” said it would find); and, (5) “Matches” personally gained access to the warehouse and saw the weapons cache. The more specific Commissioner Gordon can describe the weapons cache and the warehouse, the more likely the warrant issued on Batman’s tip is likely to withstand its subsequent challenge by Penguin after he is arrested. Thus, the tip is more reliable when Batman takes an inventory of the weapons and informs Gordon that Penguin has 20 cases of fully automatic Uzi’s and 10 cases of RPG’s. Likewise, the more the GCPD uses “Matches” as an informant who leads it to evidence of crime, the more reliable “Matches” becomes as an informant!

Conclusion

Now, this is not to say that Batman himself is not potentially criminally and civilly liable for his actions. If he crashes through the skylight window of the bank in the first example, in appropriately dramatic fashion, he would likely be liable for property damages. Also, his use of physical force against the two armed bank robbers likely constitutes assault.[20]

All of the foregoing indicates that Batman’s aid in stopping crime should not hinder the successful prosecution of criminal defendants by the Gotham DA. This of course makes the “revolving door” in Gotham all the more inexplicable. If Batman’s participation in law enforcement is legal, why are the super villains never successfully incarcerated?

We might consider the insanity defense to criminal charges. In New York, the defense is not called the insanity defense; instead it’s the mental defect or disease defense.[21] It requires that the defendant, at the time of the offense, lacked substantial capacity to know or appreciate the nature or consequences of his conduct, or that his conduct was wrong. But one study found that the insanity defense was only raised in 0.85% of cases, and was only successful in 26% of those cases.[22] Perhaps we can imagine that the 0.22% (0.85% * 26%) of successful insanity cases are those made by the likes of Joker, Two-Face, the Ventriloquist, and the more colorful members of Batman’s Rogues Gallery. In any event it seems Batman’s involvement in law enforcement does not prevent the successful prosecution of criminal cases.

 

[1] Allen, Stuntz, Hoffmann, Livingston & Leipold, Comprehensive Criminal Procedure, 87-97 (3rd ed. 2011).

[2] Miles v. U.S., 103 U.S. 304 (1880).

[3] Dunaway v. New York, 442 U.S. 200 (1979).

[4] Miranda v. Arizona, 384 U.S. 436 (1966).

[5] NY Penal Law §§ 155.05, 160.0, 160.05 (McKinney 2015).

[6] See, e.g., In re Oliver, 333 U.S.  257 (1948); Washington v.Texas, 388 U.S. 14 (1967).

[7] Wong Sun v. U.S., 371 U.S. 471 (1963); Mapp v. Ohio, 367 U.S. 643 (1961).

[8] See, e.g.California v. Hodari D., 499 U.S. 621 (1991); Mincey v. Arizona, 437 U.S. 385 (1978); Katz v. U.S., 389 U.S. 347 (1967).

[9] Jeph Loeb & Tim Sale, Batman: The Long Halloween, (2011).

[10] Fed. R. Evid. 901(a).

[11] Fed. R. Evid. 802.

[12] Fed. R. Evid. 801(c).

[13] Fed. R. Evid. 801(d)(2).

[14] U.S. Const. amend IV; see, e.g., Johnson v. U.S., 333 U.S. 10 (1948).

[15] Presuming the weapons cache is hidden and would require entry into the warehouse to identify, Commissioner Gordon cannot go to the warehouse to corroborate Batman’s tip and provide independent evidence of crime: such action would be an unlawful search.

[16] Illinois v. Gates, 462 U.S. 213 (1983).

[17] Id.

[18] See id. As an aside, the “accurate and truthful” and “basis of knowledge” aspects of the test can, as a practical matter, be established by the same evidence. The events happen in the following sequence: (1) the police appear before the magistrate to present evidence based on a tip from an informant for a search warrant; (2) the magistrate issues the warrant; (3) the police execute the warrant, search, find evidence of crime,  and arrest the defendant; (4) the defendant is charged and challenges the basis of the warrant; (5) the trial court reviews the magistrate’s determination of probable cause taking into account whether the informant has provided accurate information in the past, and on whether the police found what the informant said it would find.  The fact that the police found what the informant said it would find establishes that the informant was “accurate and truthful,” and that the informant had a reliable basis for his knowledge (how else would the informant know what the police would find!).

[19] Illinois v. Gates, 462 U.S. 213 (1983).

[20] N.Y. Penal Law § 120.00 (McKinney 2015).

[21] N.Y. Penal Law § 40.15 (McKinney 2015).

[22] Michael Perlin, The Jurisprudence of the Insanity Defense, 108 (1993).

The Superior Spider-Man & The March Across the Valley of Death (Part 2)

(This is the second part of a two-part guest post written by Anthony Cova, who serves as the Corporate Counsel at Addgene, Inc., a nonprofit plasmid repository, where he handles the company’s legal and technology transfer matters.  The views expressed in these posts are solely those of the author and do not necessarily reflect the views of Addgene.)

 

In Part I, I discussed the origins of technology transfer, or transfer of university innovations to the public in a commercially available form. Since the 1787 Constitution, the federal government and most universities have shared a common objective of promoting the general welfare by encouraging, supporting and sharing innovations. Nonetheless, many innovations, such as the cybernetics technology that enabled Aunt May and Flash Thompson to walk again, fail to reach the public. Many innovations may perish in the Valley of Death (the “Valley”), because they lack the necessary funding. Others fail because companies like Parker Industries (“PI”) choose to shelve the innovation.

In Part II, I will discuss how Empire State University (“ESU”) and the federal funding agencies (collectively, the “FED”) can rescue the cybernetics technology from PI on the public’s behalf. For the purposes of this discussion, I make the following assumptions: Octavius’s cybernetics technology, as researched and developed at PI, is (i) federally funded (ii) patentable technology (iii) that was assigned to, and (iv) retained by, Empire State University and (v) exclusively licensed to PI.[1]

 

PART II. ESCAPING THE VALLEY OF DEATH

ESU: With Great (Patent) Power, Comes Great (Contractual) Responsibilities

  1. Power of Assignment

Universities and other organizations electing to retain title to federally funded inventions (“FFIs”) must comply with several provisions under the Bayh-Dole Act (“BD”). Otherwise, they may lose not only title to those FFIs but possibly federal funding as well. Given the dwindling pool of federal research dollars and the increasing need for license derived revenue, few universities can afford to mismanage their innovations. For most U.S. universities, proper management begins well before an invention’s conception—it starts with the inventor.

Under U.S. patent law, the owner of an invention is the individual inventor. However, due to the pervasive nature of federal funding in university research and its various obligations, many university policies, as a prerequisite to hiring or enrollment, often require faculty, graduate students and other researchers to assign to their university all patent rights in any future inventions. Even non-university members may be subject to such assignment provisions if they make use of substantial university resources. In the event that federal funding has contributed to an invention, these provisions help universities avoid practical challenges (such as engaging a reluctant or adverse inventor-owners), comply with BD obligations, and, ultimately, facilitate the dissemination of university innovations to the public.

By enrolling at ESU to pursue a Ph.D., Octavius would have agreed to ESU’s intellectual property policy, which, based on similarly situated New York universities, such as Columbia, NYU, and SUNY,[2] likely stated that any patentable technologies Octavius developed while at ESU or using ESU resources were assigned to ESU. Accordingly, the cybernetics technology[3] was likely assigned to ESU.[4]

 

2. Power of Fees and Payments

      If a university elects to retain title to a FFI,[5] it must comply with several BD obligations. These include: (i) sharing an invention’s technical specifications with the public by filing a patent application within a year; (ii) favoring U.S. manufacturers for invention products; (iii) favoring small businesses in licensing deals; and (iv) reinvesting any FFI derived income into further university research. More importantly, universities have an obligation to (v) ensure that their licensees diligently work toward making licensed FFIs, and their practical benefits, available to the public on reasonable terms. In order to ensure diligent pursuit of these obligations, the FED requires universities to provide periodic reports on FFI development. These and other obligations are intended to protect a twice-charged public’s[6] investment and to facilitate public availability.

While university-industry licenses will inevitably vary, universities concerned with the possibility of FFI shelving by an exclusive licensee can safeguard the public’s interest through proper contract drafting. For example, many university technology transfer offices (“TTOs”) use annual fees to motivate licensees to diligently commercialize a FFI. If a fee becomes prohibitively expensive to carry year to year and the licensee is not expected to recoup any costs through FFI commercialization, the licensee would be expected to end the agreement. The TTO could then market the FFI to more diligent licensees. A TTO could also include license milestone payments. Not only do these payments incentivize FFI commercialization, they also provide less financially stable licensees with additional research and manufacturing funds. In either case, these payments and fees are more likely to work for smaller licensees with a good faith intention of making the FFI publicly available. With larger licensees who can afford to carryover such fees, or, in Parker’s case, where shame outweighs commercialization, these solutions may fail to deter intentional shelving.

 

  1. Power of Termination

Many universities consider the dissemination of knowledge integral to their academic mission, notwithstanding any federal obligations. Any failure by the university or its licensees to pursue such dissemination circumvents this mission and, in the case of FFIs, may lead to BD noncompliance. Accordingly, TTOs often require licensees to provide periodic reports on FFI development and commercialization. These reports may include production milestones, estimated availability and first sales. A licensee’s failure to diligently pursue FFI public availability is often treated as a material breach of the license, which becomes subject to termination.

Assuming ESU patented the cybernetics technology, PI would have had to license the technology from ESU. Moreover, assuming the technology was federally funded, such ESU-PI license likely required PI to comply with certain diligence obligations, including reports on achieving public availability of the cybernetics technology. Because Parker has publicly announced that PI would cease developing the technology, ESU could terminate the license for material breach and save the cybernetics technology.

 

March of the FED

  1. Promoting the General Welfare

A constitutional objective of the federal government is to promote the general welfare. This objective is reflected in the taxing and spending clause, which allows Congress to collect taxes to “provide for the common defence [sic] and general welfare,” and the intellectual property clause, which allows Congress to grant patents and copyrights to “promote the progress of science and the useful arts.” Given their economic, academic and societal benefits,[7] the FED’s funding of university research and its granting of patents are instrumental in furthering that objective; provided that these powers are not misused or abused. Intentional FFI shelving forces the public to suffer through a constitutionally protected patent term without benefitting from a FFI’s practical applications and robs the public of the fruits of its tax derived, federally-invested, research dollars.

 

  1. Promoting Public Availability

A primary objective of BD is to promote “the utilization of inventions arising from federally supported research or development” and their “commercialization and public availability.”[8] To determine whether effective steps have been taken to achieve a FFI’s public availability, the FED requires federally-funded universities and/or their licensees to submit periodic reports on a FFI’s utilization and development,[9] including its production status and date of first commercial sale. If the FED determines that the university or licensee has not taken the necessary steps to achieve practical application of the FFI within a reasonable time, the FED has a duty to the public to exercise its march-in rights and license, or force the university or its licensee to license, the FFI to someone else.

While the FED has yet to enforce its march-in rights under BD, previous march-in petitions were focused on product pricing rather than utilization and public availability. For example, in CellPro, the National Institutes of Health (“NIH”) determined that a FFI licensee had achieved practical application because it had licensed the FFI and was manufacturing and operating publicly available FFI products. Additionally, the licensee’s decision to allow petitioner’s continued sale of unlicensed FFI products, which met particular public needs that licensee’s products did not, also evidenced practical application. According to the NIH, granting petitioner compulsory licenses to the FFI would “influence the marketplace for the benefit of a single company” and would have “far-reaching repercussions.”[10] For similar reasons, the NIH refused to march-in on a licensee that offered FFI-based drugs at different prices in different countries. According to Xalatan, the “issue of whether drugs should be sold in the United States for the same price as they are sold in Canada and Europe has global implications and, thus is appropriately left for Congress to address.”[11] The FED’s unwillingness to exercise its authority under BD to alleviate pricing concerns has been echoed in other determinations.[12] However, in each case, the NIH found that the FFI was publicly available or would be made publicly available within a reasonable time.

 

  1. Marching in

In the event that ESU refuses to take action against Parker and PI, the FED has a duty to exercise its march-in rights against ESU and/or PI. It is clear that public availability of the cybernetics technology has not and will not be achieved in a reasonable time. Unlike previous petitions to the NIH/FED, this is not about product pricing. Parker has publicly declared that PI would be putting the cybernetics technology line on hold indefinitely. There is no question that the “licensee [i.e., Parker Industries] has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the [FFI].” To my knowledge, the cybernetics technology has yet to be developed for public “availability” or “use” and neither Parker nor PI have sublicensed the technology to another. Given the technology’s life-changing benefits and potential, the FED should not allow Octavius’s technology to gather dust on PI shelves and should exercise its march-in rights.

 

CONCLUSION

       Patents, like many objects of power, are subject to those who wield them. Many patent holders use their period of exclusivity to recoup development costs or to break into an otherwise competitive space. Some patent holders, however, wield their rights like a troll—waiting in ambush for deep pockets and/or new innovations in order to reap financial gain. In the case of Peter Parker, the technology that enabled Aunt May and Flash Thompson to walk again is simply being ignored out of pride. His decision to shelve the technology robs the public of its financial investment and impedes the general welfare.

Fortunately, there is hope. ESU and the FED can rescue the technology from the Valley of Death and ensure that others may benefit from Octavius’s work. ESU not only has academic principles to uphold but, as a recipient of federal funding, has federal obligations to meet. If ESU does not terminate its exclusive license with PI and otherwise make the technology available to other licensees, ESU could lose its patent rights and subsequent federal funding. Should ESU fail to act, the FED is empowered by BD to promote the utilization of inventions arising from federally supported research and to protect the public against the nonuse or unreasonable use of such inventions. In the event that the public is deprived of access to a FFI for an unreasonable amount of time, the FED is authorized to exercise its march-in rights and to license the technology to a more diligent licensee.

Notwithstanding the wrath of an angry Sanjani, Parker’s failure to achieve practical application of the cybernetics technology will likely have other consequences beyond the termination (or loss) of the ESU exclusive license. PI might face damages for breach of contract, and Parker himself might be liable for mishandling company assets.[13] In any case, Parker’s hubristic decision to shelve Octavius’s life-changing cybernetics technology is not as simple as his public announcement suggests. Therefore, while Octavius may no longer be a part of Peter Parker’s world, ESU and the FED can ensure that Octavius’s superior legacy lives on.

 

[1] These assumptions describe typical technology transfers. Additionally, I am assuming that Sajani’s and Anna Maria’s continued work on the technology is irrelevant for the scope of this article. Their work has not been approved by Parker or PI. Indeed, they work in secret and have taken great strides to keep it hidden from Parker and the rest of the company. Accordingly, any discussions between Parker, ESU and the FED would be based on Parker’s understanding of the technology’s development, i.e., shelved and no longer pursued.

[2] See generally New York University, University Policies: Statement of Policy on Intellectual Property 1, 4-5 (2012), Columbia University, Appendix D – Statement of Policy on Proprietary Rights in the Intellectual Products of Faculty Activity, and The State University of New York Board of Trustees, Official Compilation of the Codes, Rules, and Regulations of the State of New York, Title J- Patents, Inventions and Copyright Policy § 335.28 (b) (2015).

[3] I am assuming that the technology developed by Octavius and subsequently developed at PI is not the exact technology that drove the villain-Octavius’s arms and that, for patent purposes, the current technology is sufficiently different to warrant patentability.

[4] There is a possibility that Parker was under a similar assignment provision as a Horizon Labs employee. Upon acquisition of Horizon Labs, Tiberius Stone told Octavius that all inventions in production, including Spider-Man technology, were the acquired property of Allan Chemical. However, the cybernetics technology was not then in production. Moreover, it is unclear if Octavius was conducting his research at Horizon Labs or on Spider Island II. Finally, because Stone was fired from Horizon Labs prior to Octavius’s acquisition of Parker’s body, Stone was likely unaware of any cybernetics-related technology Octavius was developing.

[5] Receipt of federal funding does not require universities to retain title. Universities can waive title back to the inventor or to the FED.

[6] The public has paid once in tax dollars and once in suffering a patent monopoly.

[7] Discussed in Part I.

[8] 35 U.S.C. § 200 (2012).

[9] The information required by a university from a licensee in a diligence report often mirrors the information required by the FED.

[10] National Institutes of Health, Office of the Director, Determination in the Case of Petition of CellPro, Inc. 6 (1997).

[11] National Institutes of Health, Office of the Director, In the Case of Xalatan Manufactured by Pfizer, Inc. 6 (2004).

[12] See generally National Institutes of Health, Office of the Director, In the Case of Norvir Manufactured by Abbot Labs., Inc. 4 (2004), and National Institutes of Health, Office of the Director, Determination in the Case of Norvir Manufactured by Abbvie 7 (2013).

[13] Greater discussion of claims against an officer are beyond the scope of this article.