Category Archives: mailbag

Law and the Multiverse Retcon #8: Orphan Black…Again

This is the eighth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or older retcon posts, since not longer after I wrote this Orphan Black Retcon I saw Season 2 Episode 5, which further complicated matters.  Soon after that I received an email asking about it, and I knew I would have to write the first Retcon Retcon.  Spoilers ahead!

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Law and the Multiverse Retcon #7: Book Edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Orphan Black

A few readers asked about the TV series Orphan Black a while back.  Now that the show is in its second season (and I finally got around to watching the first one and have caught up with the second one), I thought I’d address the central legal questions raised by the show.  Moderate spoilers below if you haven’t seen past the first episode or so, followed by big spoilers if you haven’t seen the season one finale.

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As a Matter of Law, the Opera is Haunted

Today’s post was inspired by this question from Sara, who writes:

In the Andrew Lloyd Webber Musical The Phantom of the Opera, it is made clear that the new owners of the Opera Company and building were unaware of a chandelier-dropping, money-demanding, havoc-wreaking, stage hand-killing “opera ghost” they were to encounter squatting in their basement when they purchased the building and the company.

Would this end up being a case of “buyer beware”, where they now have to deal with this murderous costumed freak on their own, or would there be a chance of them getting their money back, since no contract they signed would have mentioned a ghost?

I would have liked to save this question for Halloween, but it’s too good a question to wait six months.  I know next to nothing about French law, so I’m going to approach it from a US perspective.  Good thing, too, because it turn out that there’s a famous New York case almost exactly on point: Stambovsky v. Ackley, 169 A.D.2d 254 (1991).  The full text of the case is worth reading if only because it is full of terrible ghost puns.

In Stambovsky a resident of New York City bought a house in the village of Nyack, a small suburb of New York.  Unfortunately for the buyer the house had a long and storied history in the community of being haunted, which the out-of-town buyer did not discover until after the purchase.  Whether the buyer was superstitious or merely concerned with the diminished resale value of a haunted house, he sought to rescind the contract on the theory that the seller should have disclosed the house’s haunted status.

Ordinarily a court might balk at having to determine whether a house is haunted, but in this case the seller had previously made a point of claiming in both the national and local press that the house was indeed haunted.  As a result the court held that the seller was legally prevented (“estopped”) from claiming otherwise and thus “as a matter of law, the house is haunted.”

Having thus established that the house was haunted, the court held that the case called for an exception to the general rule of caveat emptor (“buyer beware”):

Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

In light of all this, what do we make of the case of the Opera Populaire?  The buyers were evidently ignorant of the haunting, whereas the sellers were aware, and we may assume that even in the 1880s one would be unlikely to inquire as to the haunted status of a property.  So far, so good.

(NB: Since at least some members of the opera company know that the Phantom is a flesh-and-blood squatter rather than a ghost, it may be that the question is whether a seller has a duty to disclose knowledge of a dangerous squatter on the premises.  Inasmuch as this is a rare thing (especially for an otherwise legitimately occupied and used building) that would be very difficult for a prospective buyer to ascertain on their own (not even the seller knew where the Phantom’s lair was) it seems that a seller would have the same duty to disclose a real Phantom as a spectral one.)

However, a key difference from Stambovsky is that the sellers did not create the condition.  It’s not as though the former owners invited the Phantom to take up residence or popularized the story of the building being haunted (as far as I know).  It could be argued that they perpetuated it by not taking adequate steps to rid the building of the Phantom, but on balance I’m not sure that’s enough.  In Stambovsky the seller “deliberately fostered the public belief that her home was possessed,” whereas at least originally the story of the Phantom was mostly a matter of whispered rumors.  The Stambovsky court repeatedly emphasized the seller’s prior actions, which are mostly lacking in this case.

Thus, the outcome in this case would probably turn on the extent to which the seller had traded on the opera house’s haunted state, but there would at least be an argument for the buyers undoing the sale.  The exception to caveat emptor created in Stambovsky might not reach quite that far, however.

Ultimate Spider-Man #117

The question behind today’s post comes from Levi.  Trigger warning: this post deals extensively and frankly with the subject of suicide.

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Captain America and Taxes

Today’s post is a quick one in response to this question from ldycemn:

Since cap was frozen…should he have to pay a fine for not filling?

This seems like an appropriate question for this time of year, and luckily it has a pretty simple answer: no.  Not everyone has to file a tax return, particularly those with incomes below a certain threshold.  The filing requirements change with some frequency, but as far as I can tell there has always been a threshold.  Since Steve Rogers wasn’t earning any money after he was frozen (since he was presumed dead), he wouldn’t have to file.  If he received backpay after being thawed out then he would have to pay taxes on that backpay, but that would be based on the tax laws when he was thawed, not the years during which he was frozen.

The Flash and Property Rights

More mailbag questions today, this one inspired by this scene in The Flash Vol. 3, #2.  Charles asks:

Now, what the Flash does here is pretty freaking cool, but as you can see in my tags… what happens afterwards? Who owns that building? Do the tenants have to pay rent? Is there going to have to be a contract worked out between the landowners and the Flash? Even if it passes code, will it still be approved for someone to live in because the Flash, from all appearances, isn’t a certified home builder?

There are a lot of questions here, but let’s start at the beginning.

I. Who Owns the Building?  And What About Rent?

Regardless of the prior ownership situation, it’s clear that The Flash is offering the building as a gift.  Acceptance of that gift won’t require a contract (indeed gratuitous transfers are a classic example of a situation in which a contract does not exist).  Whether the owner will accept that gift is the real question.

If the owner of the prior building is the same as the owner of the land it sat on, then they’re unlikely to turn down a nice new building (assuming we can handwave any building code issues).  But if the landowner is not the same as the building owner, then the landowner might have welcomed the opportunity to terminate their agreement with the building owner, perhaps to consolidate lots, rezone the property, redevelop, or simply to sell or lease to someone else.  They might not be so keen on the new building.

It is also possible that the building and land were owned by the tenants themselves, which would probably simplify matters.

In any event, the tenants would almost certainly have to continue to pay rent.  They might not have to renegotiate their leases.  Apartment lease agreements commonly refer to a unit at an address, not to a specific building.  They also typically have clauses dealing with the destruction of the building, but from what I’ve seen of lease agreements it’s entirely possible that the tenants would have a right to continue to lease a unit in the new building (assuming the building owner accepted the gift, etc).

II. Building Code and Permit Issues

Now we start getting into the real problems.  In addition to The Flash (presumably) not being a licensed contractor, he certainly didn’t pull the required permits for rebuilding.  There may not be much legal leeway for the building to be approved without those licenses and permits.  And there are good reasons for this: we’re given to understand that The Flash did a good job of rebuilding, but what if he missed something?  It might not be so easy for the injured party to haul him into court.

And moreover, although the tenants ask “where are we going to live now?”, unless there’s a housing shortage the answer is “another apartment, since you can terminate the lease for the now non-existent one.”  To the extent that their property was destroyed, well, that’s what renter’s insurance is for.  Now, they may not have had insurance, and finding and moving into a new place is costly.  But it seems to me that The Flash could have more easily (and legally) used his powers to quickly make a bunch of money and then just given that to the tenants.  That might be more realistic, but it wouldn’t be very fun.

III. Conclusion

More questions remain: where did he get the building materials?  How did he pay for them?  If he could buy a building’s worth of materials, why not just give the tenants the money?  But the bottom line seems to be that even if he could convince the landowner to accept the gift of the building and the city to approve its construction, it probably wasn’t the best way to handle the situation.  It did make for an awesome comic book scene, though.

Elementary: “Child Predator”

I’m back after a brief hiatus! A whole bunch of reader questions have accumulated in the mailbag, and I’m going to try to work through the backlog. Today’s comes from Bob, a British reader who asked about the American show Elementary, specifically the first season episode “Child Predator” (spoiler alert!).  If you haven’t seen Elementary, I recommend it.  I actually prefer it to Sherlock.

Anyway, on to Bob’s questions (again, spoilers):

[In the episode,] a multiple child-killer initially tricked the police into believing he was an unwilling accomplice of the “real” killer. Believing this to be the truth the DA offered immunity from prosecution in return for his help in catching the “real” killer. Holmes subsequently discovered that the roles were really the other way round – he was the real killer and the man he claimed to be the accomplice of was, in fact, the unwilling accomplice. The deal is specifically immunity from any crimes committed in concert with the other man.
The deal is implied to still hold and he openly admits his crimes to Holmes, apparently certain that he is safe from prosecution.
One of the crimes is later discovered to be a solo endeavor as the other man was in hospital when it was committed.  [At the] end of the episode the police are about to arrest him for that one crime.

I’m British and pretty much everything I know about American law comes from your blog or the sources that inspired it, so I have three questions.

1. Would the DA really offer such an all-encompassing deal.
2. When it’s discovered that he really is the prime instigator would the deal still hold.
3. Would the “solo” murder be covered by the deal  or not.

I. Immunity in Exchange for Cooperation

As I told Bob when he sent in the question (way back at the end of 2012, embarrassingly enough), I don’t have enough criminal law experience to say whether the deal was realistic.  My gut says yes.  In theory the “accomplice” had a good defense (duress, since he was originally kidnapped by the actual accomplice), he was a minor for most of the crimes, and the police and prosecution needed his help to put away the person they thought was the actual mastermind.  Granting immunity in order to allow one member of a conspiracy to roll over on another is a common tactic, and I could see it being used here.

II. Just How Strong are Immunity Deals Anyway?

It has been recognized for some time that plea bargains can be enforced against the government. Santobello v. New York, 404 U.S. 257 (1971).  But what about deals in which the defendant is offering something else, such as agreeing to testify as a witness against other participants in the crime?  It turns out that such agreements are not always enforceable.

The Second Circuit (which includes New York) has held that “the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation” and that such agreements are subject to ordinary contract law principles.  U.S. v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002).  These principles include construing any such deal strictly against the government (because, after all, the government wrote the deal). Id. at 90.

However, all the strict-construing in the world won’t save a defendant who fails to uphold their end of the bargain.  A common feature of immunity deals is that the defendant-witness has to agree to testify truthfully.  As the Aleman case held, “truthful” can include a sincere but incorrect belief, but it doesn’t include lying. Id.  On the other hand, while the government has the discretion to decide if a defendant has adequately cooperated, “the government’s discretion does not grant it power to turn its back on its promises to the defendant under the cooperation agreement or to ignore a defendant’s cooperation efforts simply because the defendant is supplying information that the government does not want to hear.”  Id. at 91.

Aleman was a federal case, however, and the case in Elementary was a state case.  So what do the New York courts say about this?  It turns out that there’s a fairly similar New York case, People v. Curdgel, in which the defendant was given a reduced sentence in exchange for testifying against his accomplices.  83 N.Y.2d 862 (1994).  After he testified, however, the defendant went on television and said that he had lied to the grand jury.  The prosecution refused to honor the plea agreement, and the highest court in New York upheld that refusal.  The court held that the “defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People…We cannot say that essential fairness compels enforcement of the original agreement.”  Id. at 864.

So the answer will almost certainly depend on how exactly the immunity deal was written.  If it included a requirement that the defendant testify truthfully, or if the deal itself included a statement of facts that the defendant swore to, then the prosecution would not be bound by the deal because the defendant breached it by lying.  But if the deal was sloppily written and simply gave the defendant immunity in exchange for agreeing to testify (regardless of the content of his testimony), then the government may not have much of a leg to stand on.

III. The Scope of Immunity

Whether or not the “solo” murder would be covered by the deal depends again on how exactly it was written.  The language we get from the episode is “in concert with.”  We know that the real accomplice was in the hospital recovering from a major surgery at the time of the solo crime, so he certainly wasn’t actively involved in the commission of the crime.  However, the defendant likely used the accomplice’s vehicle and other, indirect, forms of assistance.  It could be argued that the deal should be strictly construed against the government to include not just conspiracy but also accessory or accomplice conduct.

That all assumes that the deal holds at all, however.  As discussed above, it’s very likely that the deal would fall apart completely once it came out that the defendant was lying about his role in the murders.

 

Citizenship and Jurisdiction in Ame-Comi Girls

Lately I’ve been working through our backlog of mailbag questions.  Today’s post comes from this email from Jesse, who offers this background:

In issue six of [Ame-Comi Girls] after having saved the world from Brainiac, the heroes discuss their next move when Steve Rogers Trevor, representing the U.S government, informs them—with the exception of Wonder Woman (who possesses Themysciran citizenship)—that they are subject to US law as American citizens which does not allow for vigilantism. He goes on to say that they are warned not to commit any more acts of vigilantism until legislation can be set in motion which would recognize them as acting under the United Nations.

Power Girl (who is of Kryptonian origin and the analogue of superman in this universe) suggests that they could operate from the Fortress of Solitude (Which apparently serves as a Kryptonian embassy located in Metropolis). However Steve Trevor informs them that the United States could ask the embassy to leave and insist that the heroes answer to American authority. (Particularly over the matter of the Batgirl and Robin in this universe being in high school. Something that the government frowns upon as they are still recognized as minors.)

Wonder Woman asserts that she will simply grant them Themysciran citizenship which would make them all subject to Amazonian law which would allow them to continue their acts of vigilantism without answering to American law.

Steve Trevor asserts that this would apparently work for a time but that there would be a number of legal issues if one of them was killed in action.

To counter this, Power Girl asserts that she has the authority to grant them all Kryptonian Diplomatic status as well as the Themysciran citizenship, making them not subject to American authority. Steve Trevor protests this, particularly regarding the fact that half of the team is under 21 but apparently, these actions cannot be countered and he leaves.

This all led to the following questions:

*Could a legislation making allowances for superheroes actually be made? Specifically one that recognizes superheroes as serving under the United Nations.

*Can a nation ask an embassy to leave? I know that this can apply to an ambassador but….

*Could another nation simply grant an American citizen citizenship/diplomatic status? Would something like that even be recognized or is there a process for relinquishing one’s American status?

*Finally, would the whole process even work from a legal stand point as a means for the heroes to continue doing what they were doing?

I’m going to address each of these questions in turn.

I. UN Superheroes

This part seems fairly straightforward.  The US could pass a law or resolution declaring that the US superheroes are acting as UN Peacekeepers, and the UN could pass an appropriate resolution accepting and deploying the superhero forces.  This approach would limit the heroes’ actions to countries that accepted the presence of the Peacekeepers, though.  It would probably also require Security Council approval, but we can ignore that political reality.

II. Kicking Out an Embassy

The short answer here is “yes.”  Contrary to popular belief, embassies are not actually little pieces of the guest country’s sovereign territory.  It would raise a tremendous diplomatic ruckus to do so, but a host country could evict an entire embassy.  Apparently the UK considered doing so in order to get at Julian Assange, for example.  But this is tantamount to completely cutting off diplomatic relations and would not be undertaken lightly.

III. Granting Foreign Citizenship

Sovereign countries can be as promiscuous with their citizenship as they like, and citizenship can be granted outside the normal naturalization process.  The US does it from time to time via private acts of Congress, for example.  The recipient of the foreign citizenship would not even necessarily have to relinquish their US citizenship first, nor would accepting the new citizenship necessarily result in loss of the US citizenship.  8 U.S.C. § 1481, the statute covering loss of citizenship, would not seem to apply if the foreign citizenship were voluntarily offered by the foreign government and did not require an oath of allegiance.  Care would have to be taken that the superheroes were not considered officers in the foreign military, though.

IV. Would This Even Work?

And this is where it all comes crashing down.  If the superheroes are operating in US territory, then the US has jurisdiction over them even if they aren’t US citizens.  And if they try to become foreign diplomats (via Themyscira or Krypton, say), then the US can simply kick them out.  If they refuse to leave then the US can exercise jurisdiction over them in the usual way.

If the superheroes decide to operate exclusively outside the US, then renouncing US citizenship would really get them very few benefits.  Eventually (after the usual penalty period) they would get to stop paying US income tax on income earned in foreign countries, and a few laws affecting actions abroad by US citizens like the Foreign Corrupt Practices Act wouldn’t apply.  But that’s about it.  Waiting for formal legal approval from the US (or whatever country they want to operate in) is probably the better approach.

As an aside: “vigilantism” isn’t a crime as such, at least not in any jurisdiction I’ve looked into.  Vigilantes certainly often commit crimes, to be sure, but it’s possible for a superhero to stay on the right side of the law (e.g. proper use of self-defense, no trespassing to find evidence).

She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.