Category Archives: retcons

Law and the Multiverse Retcon #10

Time for another installment of the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Alert readers will notice that there was no Retcon #9.  This is because there are actually two Retcon #6s, and I have decided to retcon the Retcon numbering system as though I had not lost the ability to count to 10 at some point between kindergarten and last year.

This Retcon addresses some of my shortcomings on a recent episode of the Geek’s Guide to the Galaxy podcast, specifically my discussion of Man of Steel and Superman’s possible civil and criminal liability for the destruction of Metropolis.  I saw the movie when it was released and had forgotten several key plot points that affect the legal analysis.  Thanks to Damon for pointing out these issues!  Some spoilers for Man of Steel follow.

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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 seventh 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.

Law and the Multiverse Retcon #6: Orphan Black Redux

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 not so old posts in this case.  Barely a week ago I wrote this post about the TV series Orphan Black.  Today the US Court of Appeals for the Federal Circuit handed down a decision relevant to that post.  Spoilers ahead!

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Law and the Multiverse Retcon #6: Genetiks and Human Gene Patents

This is the sixth post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.

Today I have a quick post about a recent Supreme Court case that was under consideration when I wrote this post about the graphic novel Genetiks.  As mentioned in the post, the Supreme Court had recently heard the case of  Association for Molecular Pathology v. Myriad Genetics, Inc., which was intended to answer the question “are human genes patentable?”  Since then the Court has handed down its decision, which many news outlets summarized as “no.”  The truth is a little more nuanced than that*, but in any event the Court’s decision doesn’t change the ultimate conclusion in my original post, which was that what the company in Genetiks was portrayed as doing would not be possible under US law.  If anything the Myriad decision has only cemented that.

Relatedly, I’ve gotten some questions from readers about the series Orphan Black, which apparently deals with some similar issues as Genetiks.  I’ve heard good things about the series and intend to review it at some point in the future.

* Tempted as I am to delve into the minutiae of patent law, since that’s my area of interest, I will limit myself to a brief(-ish) summary.

Essentially, the Court held that DNA molecules cannot be patented if they are the same as a DNA molecule (or part of one) that occurs naturally in the human body, even if the patent claims only isolated, purified DNA molecules, which do not occur naturally.  The Court based its decision on the fact that isolation and purification do not change the information content of the genetic sequence, which was the actual invention as far as it was concerned rather than the DNA molecule in a chemical sense.

However, the Court also held that cDNA molecules can be patented, even if the cDNA molecule is nothing more than an unpatentable DNA molecule run through a standard biotech process.  According to the Court, that process takes an unpatentable product of nature and makes it into a patentable manufacture or composition of matter in a way that isolation and purification do not.  This is evidently true even though the information content of the DNA molecule and its corresponding cDNA molecule are the same.  It is difficult to reconcile these results on their face.

It is worth noting that the Patent Act itself says nothing about products of nature.  The list of “inventions patentable” contains no exceptions at all, only an affirmative list.  The Court arrived at its conclusion by reading in / creating an exception that is not at all present in the statute but is instead derived only from prior Supreme Court cases.

The practical upshot of all this is that Myriad will lose its right to exclude others from performing clinical testing for the BRCA1 and BRCA2 mutations.  More broadly, single-gene testing is now anybody’s game.  But Myriad and other biotech companies will retain other, less-valuable patent rights associated with human genes.

That’s about all I can say without getting too soapboxy.  For more on this kind of thing, see my forthcoming paper, James E. Daily & F. Scott Kieff, Anything Under The Sun Made By Humans: Patent Law Doctrines As Endogenous Institutions For Commercializing Innovation, 62 Emory L.J. (forthcoming July 3, 2013).

Law and the Multiverse Retcon #5: The Crimes of the Mandarin

This is the fifth post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  In this case we’re discussing a not-so-old post, this one from just a few weeks ago discussing the possible criminal liability of The Mandarin from Iron Man 3.  As with the original post, the correction requires pretty massive spoilers, so read on at your peril if you haven’t seen the movie yet (which you should, it’s great).

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Law and the Multiverse Retcon # 4: Batman: Noel (Revisited)

On Christmas Day, 2011, we discussed Batman: Noel, mentioning that one of the issues present was actually the subject of a then-pending Supreme Court Case, U.S. v. Jones.

Well, the Court has just handed down its opinion in that case. SCOTUSblog has an excellent analysis of the opinion, which was only unanimous to the extent that all the justices agreed with the appellee’s contention that the use of this wireless GPS device to track his vehicle violated his Fourth Amendment rights.

The justices disagreed, however, on exactly what “Fourth Amendment rights” meant in this case. The majority opinion (Scalia, Roberts, Kennedy, Thomas, Sotomayor) was the narrowest and seems to mostly stand for the proposition that law enforcement agencies would be well advised to get a warrant before doing this sort of thing, but it stops short of holding that a warrant is categorically necessary. They essentially held that the physical intrusion of the device on the car was a “search” but punted on the use of the technology. The four-justice concurring opinion (Alito, Ginsburg, Breyer, Kagan), wanted to talk more about whether or not there was a reasonable expectation of privacy with respect to the use of GPS tracking and suggested that the longer the tracking goes on, the more of an expectation there is. Sotomayor also filed her own concurring opinion which actually criticizes the majority opinion—which she joined—suggesting that if the cops try to get too funky with warrantless, wireless tracking, she may well side with the other bloc of justices and opt for a ban.

While we certainly didn’t predict how this was going to play out in terms of the justices voting patterns, this is basically what we predicted would happen overall.  As we said, “The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant.” So ultimately, the Court didn’t decide the former issue but suggested that the latter is probably true. At the very least, using a physical device attached to one’s person or property now constitutes a “search” under the Fourth Amendment.

So this isn’t precisely a “retcon” as much as it is an update. The original post suggested that Batman probably needed a warrant to use that tracer on Bob Cratchit, and today’s opinion in Jones says that this is correct.

Law and the Multiverse Retcon #3

This is the third post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  This time around we’re revisiting another early post, a mailbag post from March.  In that post we considered an Adam West Batman episode in which the Joker and Catwoman were prosecuted by Batman.  One of the issues was whether their plan to pack the jury with henchmen would work or whether they could be re-tried.  Our conclusion was that the acquittal would stand, though there could be other charges (e.g. perjury for the henchmen, since they probably lied during jury selection, and maybe jury tampering for the Joker and Catwoman, or at least their attorney).

As it turns out, however, there is a chance that they could be re-tried.  This has implications not just for this case but lots of other kinds of supervillain courtroom shenanigans, including psychic manipulation of the judge or jury and replacing the judge or jury with henchmen, robot doubles, or shapeshifters.  But before we get to the possible exception, let’s review the general rule against double jeopardy.

I. Double Jeopardy

The Fifth Amendment provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  There are several aspects and limitations to this rule, but we only have to consider two in this case: when is a defendant “in jeopardy” (a.k.a. when does jeopardy “attach?”) and can an acquittal by a jury ever be appealed by the state?

In a jury trial, jeopardy attaches when the jury is selected and sworn in, and this is true of both federal and state courts.  Crist v. Bretz, 437 U.S. 28 (1978).  In non-jury trials jeopardy attaches when the first witness is sworn in.  So it would appear that the Joker and Catwoman were “in jeopardy” at the time of the acquittal.

As to the second question, the general rule is that the prosecution cannot appeal a jury acquittal, an acquittal by a judge, or a judge’s dismissal on the basis of insufficient evidence.  The Supreme Court has stated this repeatedly and in very strong terms:

A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

II. Is There an Exception for Foul Play?

The Court’s language, strong though it is, came out of cases where there was no allegation of foul play by the defendant.  Could a defendant really escape liability by bribing a judge or packing the jury?  If so, it seems like that rule would encourage desperate or powerful defendants (and supervillains looking at a life sentence or the death penalty would fit the bill) to go for broke.  Unfortunately for us, such cases are rare enough that there aren’t a lot of court opinions to go off of.  In fact, there’s really only one modern case: Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).

The Aleman case was an appeal brought by Harry “The Hook” Aleman, a Chicago mobster who was charged with murder, successfully bribed the judge for an acquittal, and then was re-tried (and ultimately convicted) after the bribery was discovered.  The 7th Circuit affirmed the validity of the re-trial, holding that double jeopardy was not violated because Aleman had never been in jeopardy the first time around because the judge was in Aleman’s pocket from the beginning.  Thus, Aleman was never in any real danger of conviction.

How solidly grounded is this rule?  Aleman appealed to the United States Supreme Court, but the Court declined to hear the case, so it’s hard to say definitively.  And the case has not been cited frequently, so we don’t know what other courts would think of it.  Legal scholars were divided on the issue both before and after the case, with some arguing for a limited exception for fraud while others find no room for it in the Constitution.

What’s more, some scholars that supported the Aleman court’s conclusion have proposed that the exception should be limited to corrupt judges and should not apply to a corrupted jury.  See, e.g., Anne Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal not an Acquittal?, 27 Ariz. St. L.J. 953, 989-90 (1995).

So, what can we learn from this unusual case?

III. Applying the Aleman Exception

The Aleman rule would seem to apply to the Joker and Catwoman, scholarly commentary notwithstanding.  Here’s how the Aleman court summed up its view:

Aleman had to endure none of these risks [“traditionally associated with criminal prosecution”] because he “fixed” his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell [a witness] before the trial that jail was “not an option”. Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort “traditionally associated” with an impartial criminal justice system. Aleman, 138 F.3d at 309.

In the case of the Joker and Catwoman there was similarly no risk because the entire jury consisted of their henchmen.  Their attorney engaged in no cross-examination and even declined to deliver a closing argument, stating only that “we feel sure that the jury will bear out the truth in this case.”  It seems clear that the defendants were never in danger.

But what if they hadn’t gone whole hog?  What if the jury was only partially packed with henchmen?  Would that be enough risk?  Or what if the jury were initially uncorrupt but were later psychically manipulated or bribed?  The Aleman rule seems to imply that as long as there is some risk after jeopardy has attached, then the acquittal must stand.  The implication for a supervillain seems to be not to corrupt the jury until after the trial has started or to leave a couple of token regular jury members in place and hope that they are convinced by the others, although this approach risks a hung jury, mistrial, and re-trial.

Another lesson is not to be as brazen about the fix as the Joker and Catwoman’s attorney was.  In the Aleman case the defense still put on a show, even though they knew what the result would be.  It ultimately didn’t work, but it took about 16 years before the sham was discovered.

On the other hand, outright replacement of the jurors partway through a trial seems like a surefire route to a mistrial, however, as in the case of jurors who become unavailable or are dismissed.  Any robot doubles, shapeshifters, or henchmen would need to be put in place before the jury was sworn in for sure and quite possibly before jury selection.

IV. Conclusion

Under some circumstances it may be possible for a supervillain to abuse the double jeopardy rule despite the Aleman exception.  Nonetheless, the supervillain wouldn’t get away completely free, since he or she would still be guilty of jury tampering and potentially many other crimes (e.g. conspiracy and fraud), but that might be preferable enough to more serious charges to make the gamble worth it.

Law and the Multiverse Retcon #2

This is the second post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re revisiting one of our earliest posts, Hearsay and Professor X, from way back in December of last year.  Although that post focuses on hearsay issues, this retcon is actually about the Fifth Amendment aspect.  After further research, we think that the original post was incorrect, and that the Fifth Amendment rights to silence and non-self-incrimination would protect against having one’s thoughts read by a psychic.

The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”  Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).  So what is a testimonial communication?  The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”  Doe v. United States, 487 U.S. 201, 210 (1988).  There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples. Doe, 487 U.S. at 210.  Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.  Id.

(This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords.  One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive.  In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (Feb. 19, 2009).  Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.)

We need not wonder whether reading someone’s thoughts counts as testimonial communication, however.  As the Court explained “[t]he expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”  Doe, 487 U.S. at 210 n. 9.

One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e. the difference between the witness saying “I saw Magneto kill Jean Grey” and the psychic saying “The witness remembers seeing Magneto kill Jean Grey”).  However, the Supreme Court actually addressed this issue in Estelle v. Smith, 451 U.S. 454 (1981).  In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant.  The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions).  Thus, using an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.

So, contrary to our earlier conclusion, we think that psychic powers could likely not be used to produce admissible evidence from a witness who invoked the Fifth Amendment.  And believe it or not, this issue actually has modern resonance.  Although a far cry from the kind of mind-reading that Professor X is capable of, technologies like fMRI may someday see regular use in criminal investigation.  However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e. is it more like a blood sample or speech?).  See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Tech. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).

Law and the Multiverse Retcon #1

This post is the first in an occasional series we’re calling Law and the Multiverse Retcons.  We’ll be using these posts to discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re going to discuss the America Invents Act, which was recently passed by Congress and is expected to be signed into law tomorrow.  The AIA is a patent reform act, and among its many changes to US patent law are two that affect topics we’ve written about here on the blog.

I. Batman, Patents, and Absolute Novelty

Way back when the blog was first started we wrote about Batman and patents.  In that post we talked about two related issues.  First, how Batman could use gadgets based on Wayne Enterprises technologies without preventing Wayne Enterprises from filing, and second, how Wayne Enterprises could patent those technologies without revealing it to Batman’s enemies, who might replicate it or exploit its flaws.  In short, the answer was for Batman to use the technology no more than one year before Wayne Enterprises filed a patent application (thus avoiding the “on sale bar“) and for Bruce Wayne to use his Department of Defense connections to have the technology classified so that the Patent Office would not publish the application.

The America Invents Act changes the answer slightly.  With the AIA there is no longer a one year grace period during which an invention can be sold, offered for sale, used, or published before the inventor has to file for a patent. This means that the US joins Europe in requiring what is called “absolute novelty.”  The practical upshot for Batman is that he needs to make sure that Wayne Enterprises has filed for a patent before he uses a new gadget in public. Without the one year grace period even a single public use would be enough to destroy Wayne Enterprises’ patent rights.

(Edit: Technically the AIA preserves a grace period for disclosures made by the inventor or by someone who obtained the technology from the inventor.  The problem is that Batman is usually not the inventor of technologies ‘borrowed’ from Wayne Enterprises, and it would be difficult for Wayne Enterprises to prove that Batman got the technology from them.  With very few exceptions, nobody at Wayne Enterprises knows where Batman gets his gadgets, and those that do know (e.g. Lucius Fox in the movies) aren’t going to tell.)

II. Spider-Man and Gene Patents Redux

Another post that the AIA affects is this mailbag post on Spider-Man and gene patents.  In the 2002 movie Spider-Man, Peter Parker becomes Spider-Man after being bitten by a genetically engineered spider (as opposed to the traditional radioactive one).  In a post on the subject we discussed various reasons why Parker likely wouldn’t be liable for patent infringement if the genetically modified spider were covered by one or more gene patents.

The AIA makes this even simpler.  The Act flatly prohibits any patent that is “directed to or encompass[es] a human organism.”  In order for Parker to be liable the patent’s claims would have to encompass a human organism (namely Parker), and thus the patent would be invalid under the AIA.  We can pretty firmly shut the book on that one, then!

If there are any posts that you’d like us to revisit, let us know by emailing us at and