Category Archives: property law

The Avengers: Arc Reactors and NYC Zoning Laws

Posted on May 9, 2012 by | 26 comments

For today’s post I’m going to talk about a serious legal issue raised by The Avengers, the issue everyone has been talking about since the movie debuted.  Although it was only hinted at in the movie, I know I can’t wait to see it addressed more fully in Iron Man 3 or even The Avengers 2.  That’s right, I’m talking about how Pepper Potts is going to handle the zoning permits for the buildings powered by arc reactors.

Okay, I may have exaggerated the significance of the issue a wee bit, but it’s still an interesting question.  In fact, Stark Tower raises a host of land use law questions, and the arc reactor is just one of them.  For simplicity, we’re going to assume that Stark Tower was constructed recently (rather than a rehab of a prior building) and had to comply with modern land use laws.

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building.  This doesn’t change the analysis.  Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area.  As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district).  Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent).  There are various ways to increase the FAR, such as having a public plaza on the lot.  The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones.  Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.”  Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing).  Unfortunately, research and development is not allowed as a permitted or conditional use in this district.  In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation.  How can he get it?  There are many possible ways.

II. Getting Around Zoning Laws

He could argue that the zoning regulation is unconstitutional, improperly enacted, or unauthorized by the City’s charter, or he could lobby for an amendment to the regulation.  I don’t know of any reason the regulation in question would be unconstitutional or otherwise invalid, so we won’t go into any more detail there.  If New York is anything like cities that I’m more familiar with, the most likely approach is an amendment to the zoning regulations.

A. Rezoning

Rather than seek a blanket change to the C5-3 district, Stark could propose a zoning amendment to change 200 Park Ave to C6.  Zoning amendments are subject to the Uniform Land Use Review Procedure.  As described by the Department of City Planning, “The ULURP is the public review process, mandated by the City Charter, for all pro­posed zoning map amendments … . ULURP sets forth a time frame and other requirements for public participation at the Community Board, Borough Board and Borough President levels, and for the public hearings and determinations of the Community Boards, Borough Presidents, City Planning Commission (CPC) and City Council.”

So getting a zoning amendment through will require the cooperation of at least five different government entities, plus the public.  Luckily, changing from a C5 to a C6 isn’t too dramatic a shift.  It’s not like Stark wants to build a chemical plant  in the middle of Manhattan.

B. Variance

Another alternative is to seek a variance.  “A variance is an authorization for a landowner to engage in construction or maintenance of a building or structure, or to establish and maintain a use of the land which is  prohibited by a zoning ordinance. It is a right granted by a zoning board of appeals pursuant to power vested in such an administrative body by statute or ordinance, and provides a form of administrative relief from the strict application of zoning regulations.”  Patricia E. Salkin, 2 N.Y. Zoning Law & Prac. § 29:1.  In particular, Stark would be seeking a use variance, since he wants to use the land in a way prohibited by the zoning ordinance.

In New York City, the zoning board of appeals is the New York Board of Standards and Appeals.  The test for use variances is defined by statute in N.Y. General City Law § 81-b:

In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(i) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(iii) the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(iv) the alleged hardship has not been self-created.

This is kind of a tall order, especially the first two requirements.  Stark would have to show that none of the permitted uses of the property would allow him to realize a reasonable return and that for some reason only this particular location is problematic in that way.  It’s pretty hard to buy the idea that Stark couldn’t make decent money off of an office tower in Midtown Manhattan unless he can put ten floors of R&D on it.  But I suppose clever attorneys and experts could craft an argument for it.  Further, Stark would need to show that the whatever unique hardship he is relying on as justifying the variance is not shared by a significant amount of the surrounding properties.

And what if the BSA says no?  Well, then Stark could take the issue to court.  “Actions of the zoning board of appeals are subject to review by the courts, to determine whether the board acted within the limits of its jurisdiction, whether the standards imposed by statute and ordinance were respected, whether the procedural rights of the litigants were observed, and whether the board was chargeable with any abuse of its discretion.”  2 N.Y. Zoning Law & Prac. § 28:30.

A court will not lightly disturb a board’s decision not to grant a variance, however.  “Since the zoning board is given discretion in these matters, the court’s function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion. The board’s determination will be sustained if it has a rational basis and is supported by substantial evidence.” Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 608 (1978).  This kind of deference is common with administrative agencies.  After all, what’s the point of an expert agency if a court can easily overturn its decisions?

III. So About Those Arc Reactors

So far I’ve been talking about the research & development floors.  But what about  the arc reactors?  Well, that’s tricky because it’s not clear just where the reactor is located.  Is the reactor in the building or is it part of the device Stark attaches to the undersea cable?  If the reactor isn’t in the building then that solves quite a few zoning issues.  If it’s not, well….it’s complicated.

Electric power plants aren’t allowed in any kind of commercial district.  Instead, they’re allowed in certain manufacturing districts, New York’s version of industrial zones.  However, just this month the City has adopted new regulations making it much easier for building owners to install solar and wind power generation equipment and even to provide power to adjacent buildings, so long as utility company requirements and other regulations are complied with.  In a world where the arc reactor exists and has been proven safe, it’s entirely believable that the City would allow on-site power generation by arc reactors though it would likely require a text amendment to the current ordinances.

IV. Conclusion

The arc reactors and Stark Tower pose some interesting land use questions, but it’s nothing that couldn’t be resolved with straightforward rezoning or a variance.  Honestly, getting FAA approval for his suit would be a much bigger headache.  So while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective.

26 Comments

Posted in administrative law, movies, property law

Mayor Jameson’s Eminent Domain Problem

Posted on May 2, 2012 by | 30 comments

We’ve picked on Spider-Man a bit recently, so in interests of fairness we’re going to pick on J. Jonah Jameson, who is currently the mayor of New York in the Marvel Universe.  Recently, Jameson has focused his ire on Horizon Labs, a research and development company that happens to employ Peter Parker in his capacity as a scientist.

The particular issue in today’s post comes from a question from Christopher, who writes:

[In Amazing Spider-Man #682] Parker and other Horizon Labs employees witness a confrontation between HL owner Max Modell and Mayor Jameson in which the Mayor says “As Mayor of this city, I am ordering all of you to vacate these premises immediately!” He has arrived to bully HL into shutting down and gives various reasons [, listed below]. Later in issue 683 he comes back with “Chief Pratchett” presumably some ranking officer in the NYPD and shuts off the company’s power supply: “You’re not getting a single amp out of Con Ed!” He then orders “Chief Pratchett, have your men clear the building, after that, no one gets in or out, understood?” Chief Pratchett accedes to the request but we cut away from the confrontation and don’t return this issue.

This is obviously an ongoing storyline which will play out over another 4/5 issues but surely Jameson is overstepping his authority to clear out a private building without any kind of court order. And isn’t Pratchett wrong to comply?

At various points in #682 and #683 Jameson gives some reasons for wanting Horizon Labs shut down, including:

1. “This man has access to spider-jammers that could control Spider-man! Yet he refuses to turn them over to the city!” (see Spider-Island 667-673)
2. “One of your people built a time machine that did destroy the city.” (678-679)
3. “And now I hear you have a monster holed up here?!” (679.1 The “monster” is Dr. Morbius)
4. “Two days ago, you almost got my son killed.” (680-681)

So, is any of this sufficient to justify cutting power and ordering the police to clear the building?

As Horizon’s lawyer, who was present for the first confrontation with Jameson, argues, probably not.  The spider-jammers have been destroyed, the EPA cleared Horizon regarding the alternate universe incident (who knew that the EPA had jurisdiction over time travel and alternate futures?), and Dr. Morbius isn’t a monster but rather suffers from a poorly-understood medical condition.  Jameson isn’t satisfied and vows to return, which leads to the second confrontation (the one with the power-cutting and the police).

But suppose Jameson’s allegations were correct.  Could the mayor really do that?  And if not, what is the potential liability for Pratchett and the other police officers?

I. Eminent Domain

The most likely source of Jameson’s power to order Horizon shut down is eminent domain, which allows the taking of private property for public use in exchange for just compensation.  New York has a statute, the New York Eminent Domain Procedure Law, that is just what it sounds like.  It sets out “the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state.”  N.Y. Eminent Domain Proc. Law § 101.  Unfortunately for Jameson, it doesn’t look like he has complied with the procedures.

A. Public Hearing

Ordinarily the eminent domain process begins with a public hearing.  § 201.  However, there are some exemptions, one of which is when “because of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” § 206(D).  I suppose it’s arguable that Horizon presents such an extreme danger to the city that a public hearing can be avoided.

However, Horizon labs could file suit to challenge the City’s determination that it is exempt under § 206(D).  “Where, however, a condemnor proceeds under one of the exemptions provided in EDPL 206, and therefore claims that it is not required to comply with the foregoing notice, hearing, and determination requirements, a condemnee may, unless otherwise provided by statute, challenge the applicability of the claimed exemption in the Supreme Court … .” Steel Los III, LP v. Power Authority of N.Y., 33 A.D.3d 990, 990-91 (2006).  The reviewing court would almost certainly issue a temporary restraining order or preliminary injunction preventing the City from shutting down Horizon until it had reviewed the case.  Given that Horizon appears to be represented by competent legal counsel, I think it’s likely Horizon would go to court once Jameson threatened to take the building.

B. Negotiations

The eminent domain law also requires the condemnor (i.e. the City) to “make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement” “at all stages prior to or subsequent to an acquisition by eminent domain.” § 301.  This includes making at least one written offer representing the just compensation for the property.  § 303.

In this case, we don’t see any discussion of compensation, much less negotiation or a written offer.  Instead, Jameson seems to think he can simply take the building outright.  There is a lot more to eminent domain, but I think that’s enough to establish that Jameson wasn’t doing it right.

II. Consequences

Assuming the City can’t legally take the building through eminent domain, what are the possible consequences for cutting power and forcibly evacuating the building?  The most likely result is a § 1983 suit alleging a violation of Horizon’s constitutional rights, specifically their rights under the Fourth Amendment.  If successful, this could result in an award of actual damages, punitive damages, and attorney’s fees.  Given the expensive equipment and experiments that may have been lost or damaged by the sudden loss of power, that could be a pretty significant bill for the city.

Importantly, the City and officers could claim qualified immunity under § 1983.  “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  “The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”  Id.

So, for example, if the officers were told that the City had a court order to shut down Horizon, then the officers might not be liable because they were operating under a mistake of fact.  Jameson, however, clearly knew what was up, and I think it would be hard for him to claim qualified immunity, at least if he thought he was exercising the power of eminent domain, since a reasonable person would have known about the proper procedure for doing so.

III. Conclusion

There are other possible ways that the City could try to shut down Horizon (e.g. alleging violations of the law and arresting everyone or suing the company), but the way it’s depicted in the comics really suggests eminent domain to me.  I think it’s reasonable to assume that if the City had a good claim to criminal or illegal activity then it would have simply called in the cops or sent in the lawyers.  Jameson’s approach is so vague that eminent domain is the only thing that I can think of that fits the bill.  Alas, his failure to follow proper procedures is likely to get him (and the City) sued.

30 Comments

Posted in civil rights, constitutional law, mailbag, property law, Spider-Man

Dollhouse: Haunted

Posted on February 17, 2012 by | 19 comments

We’ve written generally about the TV series Dollhouse before, but this is our first look at the legal issues raised by a particular episode from season one.  The show was recent enough that we’ll give a spoiler warning.

Continue reading →

19 Comments

Posted in criminal law, estate law, mailbag, property law, television

Breaking Bad: Landlord-Tenant Law

Posted on February 6, 2012 by | 13 comments

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

13 Comments

Posted in contracts, criminal law, property law, television

Minor Superheroes and Property Ownership

Posted on January 6, 2012 by | 20 comments

Today’s post will be a fairly quick one.  The topic comes courtesy of Frank, who asks, “Aliens gift the Power Pack children with superpowers, costumes and a sentient robot. Don’t their parents technically own these gifts?”  Perhaps surprisingly, the answer is no.

For well over a century, the common law doctrine has been this:

[A father] has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority.  Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant.  Hoblyn v. Johnson, 55 P.3d 1219, 1228 (Wyo. 2002) (quoting Banks v. Conant, 96 Mass. 497 (1867)).  

As the Hoblyn court explained, “this opinion still provides an accurate statement of the law.”  And it seems to be true in Virginia as well, which is where the group received the gifts.  Midkiff v. Midkiff, 201 Va. 829, 831 (1960) (“the common law is in force in Virginia, except where modified by statute” and “at common law an infant was entitled to his own property rights”).  Since the costumes and the sentient robot / spaceship were given as gifts, the children do indeed own them.

Now, you may have heard of the Uniform Gifts to Minors Act or the related Uniform Transfers to Minors Act.  The former covers deposit accounts, securities, and insurance; the latter covers property more generally.  These model laws, which have been adopted in many states, including Virginia, allow for property to be given to minors but held by a custodian until the minor reaches the age of majority (21 in the model version of the Acts, 18 in Virginia’s version).  VA Code Ann. § 31-37.  The primary purpose of the Acts is to avoid the hassle and expense of setting up trusts, not to allow gifts to be given that otherwise couldn’t be nor to be the only way to give a minor a gift.  Furthermore, in order to be a gift under the Acts, the gift has to be given in a particular way that specifically invokes the Act.  So if Aelfyre Whitemane wanted to give the costumes and robot to the children but didn’t think they could be trusted with them until they reached adulthood, the UTMA would be one way to accomplish that.  Even so, the custodian need not necessarily be the children’s parent but could be basically any competent adult who agreed to take on the job.

So to sum up: there are a lot of potential issues with superpowered minors, but gadget-based minor superheroes (and villains) can legally own their gadgets independently of their parents or guardians.

20 Comments

Posted in mailbag, property law

The Muppets

Posted on December 19, 2011 by | 8 comments

The Muppets was released a few weeks ago, the first theatrical release in over a decade, and is widely regarded as an excellent addition to the Muppets corpus. But it also contains a bit of legal finagling worth a second look. “What?” you say. “A Muppet movie? With legal conundrums?” Well… yes. In fact, the entire plot revolves around a lease-to-own contract, as pointedly lampshaded by Waldorf… which lampshading is itself lampshaded by Statler, for all your fourth-wall-leaning needs. Continue reading →

8 Comments

Posted in intellectual property, movies, property law

Batman: No Man’s Land, Part 3

Posted on September 8, 2011 by | 12 comments

This is our third post on the No Man’s Land story arc.  The subject this time is property law with a side of torts.

J. Devlin Davenport, Gotham’s other billionaire playboy, has returned from vacation to discover that the crown jewel of his real estate empire, Davenport Center, has toppled during the quake.  What’s left of the building is now blocking a major road that the city needs to clear in order to expedite relief efforts.  Unfortunately, Davenport demands that the city stop its plans to bulldoze a path through the fallen building, and he further threatens to sue the city “for every cent it has left” (frankly this is likely to be less than zero) and, more importantly, he also threatens the city with an injunction (i.e. a court order prohibiting the city from destroying his property).

In the end, Batman cuts the apparent Gordian knot by commandeering a bulldozer at night and plowing through the building, but did Davenport’s claims have any legal merit?  We don’t think so, for multiple reasons.

First we must explain the distinction between the two main kinds of property, real property and personal property, also called “chattels.”  Real property includes land and things “permanently attached to the land,” typically buildings and other permanent structures.  Personal property is basically everything else, including money and even certain intangible forms of property such as patents.

This is an important distinction because Davenport Center was real property before it fell over but became mere personal property thereafter because it ceased being permanently attached to the land.  The land on which Davenport Center previously sat remained real property, of course.  As personal property left on a public street, Davenport Center itself basically became litter, which Gotham had the right to clean up.  Furthermore, many states have specific laws dealing with the removal of debris following a disaster, and the federal government (specifically FEMA) will reimburse states for the cost of cleaning up debris in declared disaster areas.

Even if Davenport Center were still real property, cities typically have the right to demolish unsafe buildings and even collect the costs of the demolition from the owner.  See, e.g., N.Y. Gen. Muni. Law § 78-B.  Davenport should be thankful that the city didn’t hand him a bill.

Finally, regardless of the property status of Davenport Center and even if it still retained some value, Gotham could claim the tort defense of public necessity and remove it anyway.  Although some state courts have held that, at least in certain circumstances, the government must reimburse the private owner for the damage done, the traditional rule is still that the government is not liable.

Our conclusion is that Davenport didn’t have a leg to stand on, so it’s unfortunate that it took an act of Batman to set things right.

12 Comments

Posted in property law, torts

Rise of the Planet of the Apes

Posted on September 1, 2011 by | 12 comments

We’re going to take a (belated) look at the recent Rise of the Planet of the Apes movie, which turned out to be surprisingly good. Like usual, we’re leaving more thorough evaluations of the movie’s merits as such to others, and spoilers will abound. Continue reading →

12 Comments

Posted in movies, property law

True Blood

Posted on July 23, 2011 by | 43 comments

The fourth season of True Blood started up a few weeks ago, so it seems a fitting time to discuss the various legal implications of that setting. The series is based on The Southern Vampire Mysteries novels by Charlaine Harris, but we’re going to focus on the TV show because neither of us have actually read the novels (yet!).  There’s also a comic book series.

For those who don’t know, the premise of True Blood and the novels upon which it is based is that vampires, along with various other supernatural beings like dryads, werewolves, fairies, etc., are real and have been around forever. These vampires are a lot more like the good old bloody vampires we find in Dracula than the sparkly, limp-wristed pretty-boys or hideous, predatory monsters of recent fiction. They’re essentially dead humans animated by magic. They’re immortal, possessed of superhuman abilities—strength, speed, flight, a form of hypnosis—which increase as they age. They’re immune to most diseases and can heal rapidly, but they burn in sunlight and are poisoned and weakened by silver. And their blood acts as a powerful, unpredictable, and highly addictive drug as well as supernatural healing agent when consumed by normal humans. They’ve been living in a sort of shadow society for centuries, always on the borders and dark places of whatever culture they happen to occupy.

The conceit which starts the action of the series is that in the late 1990s, scientists in Japan finally figured out how to synthesize real human blood in the laboratory. Exactly how this is done is not made clear, and thus far isn’t important. What is important is that for the first time, vampires can exist without feeding on the blood of living humans. A faction within the vampire community took the opportunity to make vampires known to the world, ending the masquerade and becoming public members of human society. “Coming out of the coffin,” as it were; the series contain fairly obvious civil rights metaphors, particularly gay rights.

Anyway, as one might imagine, this leads to a right nasty bunch of legal snarls. A lot of these we’ve already talked about in other contexts, which will be helpful, but some of the issues are new. This may well turn into a series of posts, and we may start doing analysis of episodes as they air, as we’re doing with Torchwood: Miracle Day.

I. Immortality

This would be the obvious one. Immortality was one of the first things we discussed, but that was mostly in the context of being immortal while maintaining the masquerade, i.e. not letting anyone know that you’re immortal. So the vampire community would have needed to deal with those issues before the start of the series, but not anymore. Being immortal is not illegal as such. Indeed, making it illegal might well be unconstitutional. In Robinson v. California, 370 U.S. 660 (1962) the Supreme Court that it was unconstitutional to punish someone for being possessed of a certain biological condition, in this case addiction to narcotics. The Court reasoned that while using illegal narcotics might well be illegal, being addicted to them could not be, because that could be involuntary. Similarly, being made into a vampire is frequently an involuntary transaction (and apparently incurable), so punishing people for being vampires would seem to be problematic. Of course, there’s also the whole issue of whether or not vampires count as people, but we’ll get to that in a bit.

This particular implementation of immortality has some weird results. For example, Bill Compton winds up reacquiring the house his family had owned in the 1860s. It had been abandoned when he died, which is plausible given the setting in rural Louisiana, and when he reappeared to claim title, there wasn’t anyone to dispute his claim. We discussed what might have happened if there had been owners in the mean time back in December, and that analysis seems to work here.

II. Vampire Rights

A big question in the series has to do with the issue of vampire rights. By the time the show starts, it seems to be pretty much settled that vampires can own property, but the issue of humans marrying vampires has caused a fair amount of controversy. Truth be told, this seems to be a rather transparent and clumsy attempt to force the situation into an analogy for gay rights, because the issues actually are fairly different. First of all, the reason that people seem to be objecting to human/vampire marriage is that vampires are dead, and thus not really people. Of course, if that’s the case—and they are dead, to be sure—why can they own property? We talked about the issue of non-human intelligences starting here, and the real question here is not why vampires cannot marry, but why they can own property. If vampires are not people, or at best are ex-people, they shouldn’t have any rights at all. But if they are sufficiently human to own property, they should be sufficiently human to do anything else that a human can legally do. So there is indeed a line to be drawn here, but the place that it’s drawn doesn’t really make any sense. The issue doesn’t even really implicate gay marriage, as there are plenty of vampires who would just as soon enter into heterosexual relationships with humans and even with each other, so there’s no inherent change to the traditional definitions of marriage in view. At the beginning of season four we’re finally starting to see what looks like grassroots, community opposition to vampire-owned businesses, but that mostly seems to be based on the immorality or even amorality of vampire stereotypes (and let’s be honest, most of the vampires we’ve seen, even the nice ones, are distinctly unpleasant people) than on the fact that they’re dead and thus arguably not human.

In all fairness though, should vampires of this sort suddenly announce themselves to the world… it’s not implausible that the situation would wind up being just as irrational as the one in the stories. The marriage issue seems forced, but there would likely be a ton of conflicting and inconsistent attempts to challenge their right to become part of society premised on the fact that they’re not really human, or at least sufficiently different from baseline humans to justify treating them differently. But unless the courts pretty consistently sided against vampire rights, it would only seem to take a couple of decisions to establish that their rights are co-extensive with normal humans’.

IV. “Making,” Murder, and the Constitution

There’s one more sort of premise-level issue we’re going to look at before moving on. The question is whether turning someone into a vampire counts as murder. “Dying” is definitely part of the process: the vampire basically needs to drain them dry, have them drink the vampire’s blood, then spend the night with them underground, though exactly how this works hasn’t been shown on screen. And the result is a corpse. Vampires make no bones about the fact that they’re dead: they can’t eat, drink anything but blood, and none of their organs really seem to work. They are, for all intents and purposes, magically animated corpses. But still corpses.

So could a vampire who turns a human into a vampire be charged with murder? That’s going to depend on the means by which the victim was killed. Murder is the deliberate unlawful killing of another. If the vampire hunted the victim down, fed on him, killed him, and then turned him into a vampire, then definitely. But the crime of murder attaches with the deliberate killing, not the conversion. So if, for example, a vampire happened on a car accident, and plucked a person who would have otherwise been DOA from the wreckage and turned them into a vampire, that wouldn’t be murder. It might be assault, as if the person didn’t want to be turned into a vampire it would constitute an unwanted touching, but under the current state of the law, the conversion process alone does not seem to count as a crime in and of itself. Of course, there’s nothing to stop legislatures from passing statutes to make it illegal, and the stories seem to suggest that there would be significant public support for that kind of thing.

Then the question becomes whether that law would be constitutional. Assuming for the moment that vampires have rights like regular people, is it constitutional to pass a law which amounts to forbidding them to procreate? Such would almost certainly be unconstitutional if applied to humans as an impermissible burden on the right to privacy as currently formulated. But the vampires don’t really procreate. They take people that already exist and change them, often against the person’s will. At the very least, it would certainly be constitutional to forbid involuntary conversion. But it would arguably be a burden on the human in the transaction to forbid voluntary conversion. Of course, if vampires don’t have rights, then the whole thing is probably fair game.

III. Conclusion

Those are just some of the baseline legal issues in the premise of the series. We’ll take a look at some specific issues in later posts.

43 Comments

Posted in constitutional law, criminal law, property law, television

Transformers: Dark of the Moon

Posted on July 6, 2011 by | 6 comments

The Fourth of July weekend is a fitting time for the release of Michael Bay’s latest round of cinematic pyrotechnics, Transformers: Dark of the Moon. It’s better than the first two, though that’s not saying all that much. And like the first two, we’re not breaking any new legal ground here either. In fact, as seemingly befits a movie which is almost entirely derivative… there isn’t a whole lot to say that we haven’t covered already. But in any case, here’s a roundup. Continue reading →

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Posted in civil rights, insurance, movies, property law