Category Archives: Batman

Is Batman a Murderer?

Nerdist’s Jessica Chobot interviewed me about an interesting legal issue from Batman Begins: is Batman criminally responsible for Ra’s al Ghul’s death?  A similar question was asked in a comment to this post back in 2012, but the answer had to wait until now.  So is Batman a murderer? What about Jim Gordon?  Watch the interview to find out!

Batman v. Superman and Import Licenses

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

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

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

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Guest Post: Insurance Fraud is No Laughing Matter

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


Cameron Kaiser tries to play the Joker

I. Introduction 

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

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

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

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

II. Insurance Fraud

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

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

A. Knowingly and With Intent to Defraud

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

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

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

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

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

B. Prepares a Statement Concealing a Material Fact

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

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

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

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

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

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

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

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

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

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


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

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


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

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

  1. Another Night on Patrol

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

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

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

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

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

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

  1. Fruit of the Poisonous Tree

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

  1. Confessions

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

  1. Search warrants

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

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

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


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

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

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


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

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

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

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

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

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

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

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

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

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

[11] Fed. R. Evid. 802.

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

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

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

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

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

[17] Id.

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

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

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

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

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

Super Heroines in the Pub

This Monday, September 28th, I will be giving a talk on Batman villains and the insanity defense as part of a Super Heroines, Etc. event here in St. Louis.  Super Heroines, Etc. (aka SHE) is a St. Louis-based 501c3 nonprofit focused on empowering women through educational events, classes, and workshops.  I’m looking forward to it and hope to see many of you there!

A Comic Book-Inspired Law School Final Exam

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

IBT 705 International Trade Remedies Law

Spring 2014

Final Exam: The Dark Knight Edition


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

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

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

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

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

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

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

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

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

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

Thus, the expected 2014 industry snapshot is as follows:

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

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

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

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

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

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

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

Judging Batman and Superman

Today I have something a little different, a draft of a paper by Jeremy Greenberg titled Batman v. Superman: Let the Courts Decide, 33 Quinnipiac L. Rev. ___ (forthcoming 2014).  Mr. Greenberg analyzed 1449 mentions of Superman, Batman, Bruce Wayne, and Clark Kent in US state and federal court cases to determine how judges used references to these characters to explain their decisions.  After weeding out false positives such as actual people named Bruce Wayne, intellectual property decisions about the character of Superman, and statements made by witnesses, Greenberg was left with 55 references in the judicial opinions themselves.

Mr. Greenberg’s analysis of the common themes in the references is interesting, as is the underlying data.  I won’t reveal any more than that, lest I spoil some of the surprises.  Go check it out!

Batman: Court of Owls

Batman: The Court of Owls is the first few issues of Batman in the New 52. It concerns a shadowy conspiracy referenced in a child’s nursery rhyme apparently common knowledge in Gotham City. The story itself does have a few things to discuss, but this time we’re going to talk about shadowy conspiracies generally. How realistic is it, legally speaking, for a group of people trying to control Gotham City (or the world for that matter) to pull off something like this? Continue reading

Lawyer2Lawyer Podcast

[Spoiler Alert for The Dark Knight Rises.  If you haven’t seen it yet, you should.]

Last month I was invited onto Lawyer2Lawyer to discuss legal issues raised by the end of The Dark Knight Rises, as originally discussed in this guest post by Mike Lee. Lawyer2Lawyer is a podcast that analyzes contemporary news topics from a legal perspective on the Legal Talk Network. Normally they cover serious news stories, but this time the question was “is Batman legally dead?”  I was joined on the show by Michael Baroni, General Counsel at Palace Entertainment and a long-time Batman fan.

Listen here: Is Batman Legally Dead?

Batman at the Volokh Conspiracy

Ryan has a guest post at The Volokh Conspiracy today: Batman, Appropriations, and “Augmentation.”  It discusses events from the very end of Volume 1 of Detective Comics, right before the New 52 reboot.