Category Archives: X-Men

Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law

Posted on March 29, 2013 by | 70 Comments

This guest column was contributed by Dan Vorhaus, an attorney at Robinson, Bradshaw & Hinson, P.A. and Editor of the Genomics Law Report.

Previous posts here at Law and the Multiverse have discussed the status of mutants under several of our nation’s anti-discrimination laws, including the applicability of constitutional protections afforded by the Equal Protection and Due Process clauses of the 14th amendment and statutory protections afforded by the Americans with Disabilities Act (ADA).

There remains, however, one key piece of important anti-discrimination legislation that has yet to be considered in evaluating the legal protections afforded mutants under the law: the Genetic Information Nondiscrimination Act, or GINA.

I. GINA and Mutant Genetics: A Primer.

GINA represents a historic achievement. Enacted in 2008 after 13 years of debate, many have called it the “first civil rights bill of the 21st century.” Five years later it remains the first and only piece of federal legislation to specifically address the use and effects of genetic information.

Broadly speaking, GINA is divided into two parts. Title I of GINA prohibits health insurers from using genetic information to deny coverage or to set premiums or payment rates. Title II prohibits employers from requesting genetic information or using genetic information in hiring, firing and other employment-related decisions.

GINA’s unique focus on genetic information makes the law of particular relevance to mutants. “Mutants,” as we now know thanks to decades of research by devoted and largely off-panel comic book scientists, are individuals who possess at least one mutated copy of the so-called “X-Gene.” The gene appears to promote the development of superhuman powers and abilities, typically post-puberty.

While much remains unknown about the X-Gene’s structure and function, scientists specializing in mutant genetics have isolated its protein product(s) as evidenced by the deployment of mutant suppression drugs in X-Men: The Last Stand (the drug in question is derived from the mutant Leech). From this we can extrapolate that the location of the X-Gene in the Homo sapiens genome is known and, importantly, that mutations within the gene can be identified through genotyping or even targeted sequencing of the X-Gene itself.

With the identification of the X-Gene and the subsequent decline in cost of genomic sequencing technology, there are a number of scenarios in which a genetic test to “diagnose” a mutant at an early stage, particularly before he or she has developed any superhuman (and frequently super-destructive) abilities, might be desirable. But in light of GINA’s passage, are such genetic tests legal?

II. Mutant Discrimination in a Post-GINA World.

We start with a pair of scenarios in which genetic testing for the X-Gene might be of interest.

First, a health insurer could require applicants to submit to testing in an attempt to screen in individuals with beneficial mutations (e.g., those resulting in unique healing abilities) or screen out individuals with X-Gene mutations capable of generating catastrophic levels of claims exposure (e.g., as a result of an at-times-uncontrollable ability to rearrange matter), thereby helping to more accurately project the insurer’s exposure.

Second, an employer might use the X-Gene test to gain valuable insight about a prospective hire. For instance, a research laboratory might use the X-Gene diagnostic test to double-check that the reserved but well-qualified physicist it is considering for an open position won’t demolish the lab – and everyone and everything within it – if an experiment goes awry.

Prior to GINA’s passage, testing in either scenario would have at least been arguably permissible, although various other anti-discrimination laws, including those discussed in previous posts, might have served as the basis for an effective challenge. Post-GINA, however, the analysis is crystal clear: both of the above examples of X-Gene screening are illegal.

The text of the statute itself offers no ambiguity:

  • A health insurer “...shall not request, require, or purchase genetic information for underwriting purposes.” (§ 101)
  • It is unlawful for an employer “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee, because of genetic information with respect to the employee.” (§ 202)

 Although Congress did provide limited exceptions to the general prohibition on requesting and using genetic information in the insurance and employment contexts, none of the exceptions are targeted at mutants, tests specifically designed to test for X-Gene mutations or are otherwise applicable to the scenarios discussed above.

III. Professor Xavier and Pro-Mutant Genetic Discrimination

While GINA may operate to protect mutants from certain forms of genetic discrimination, we should not forget that the statute is crafted broadly and protects against the misuse of any individual’s genetic information. In other words, just as mutants are protected by GINA, so too are they bound by it.

Consider the case of Professor Xavier’s world-renowned school, variously referred to as “Xavier’s School for Gifted Youngsters” and the “Xavier Institute for Higher Learning.”

While little is known of Xavier’s closely-guarded school, it appears to satisfy the definition of an employer subject to Title II of GINA. (GINA applies to all private employers with 15 or more employees. With roughly a dozen identified faculty members, and likely additional faculty members and administrative and support staff on the payroll, Xavier’s school likely crosses the 15-person threshold.)

Xavier’s school also has an unbroken track record of employing mutants as faculty. While it may seem logical and even desirable to employ mutants in a school dedicated to the education and training of mutants, GINA prohibits the use of genetic information in hiring and other job-related decisions without exception. Even in situations where genetic information might appear to be a legitimate criterion for assessing fitness to perform a particular job, GINA forbids its use by an employer.

Of course, it is highly unlikely that Xavier requires prospective faculty members to submit to a traditional genetic test as a condition of their application and/or hiring. In addition to his well-known psionic powers which allow him to identify mutants using only his mind, many or all of the individuals applying to work at the school have manifest mutant powers. Nevertheless, GINA is clear that genetic information, however acquired, may not be used “in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.” 29 CFR § 1635.4. No matter how he comes by the information, if Xavier is indeed using genetic information in employment-related decisions, this would be a clear violation of GINA.

Since none of Xavier’s existing faculty members are likely to bring a discrimination claim, how might one arise? The most likely scenario: a gifted but non-mutant individual, perhaps one even possessed of other superpowers derived from, for example, an alien genesis or technological enhancements, seeks a position at Xavier’s school as an instructor but is turned away. Such an individual would be well-positioned to bring a successful genetic discrimination claim under GINA against Professor Xavier and his school. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title II of GINA, provides detailed instructions for filing just such a charge.

As with any new piece of legislation, it will take some time before GINA’s full implications for both mutants and humans become clear. Final regulations for Title II of GINA were published in 2010, but public examples of GINA-in-action remain few and far between, and illustrate the many uncertainties and difficulties of enforcement.  For example, given the EEOC’s difficulty subpoenaing documents from Nestle in a recent enforcement action, one can only imagine the considerable challenges that would await the Commission in attempting to gather the evidence needed to successfully establish a claim of discrimination under GINA.

Nonetheless, the law of GINA is clear, and the coming years may require the Commission and other regulatory bodies to overcome those challenges in order to appropriately enforce GINA both for and against the mutant population. Count on Law and the Multiverse and the Genomics Law Report to continue to keep you apprised of all the latest in GINA, mutants and genetic discrimination law.

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Posted in civil rights, guest posts, insurance, labor law, X-Men

The Scarlet Witch and Insanity

Posted on September 19, 2012 by | 21 Comments

Christopher writes:

In fairly recent issues of Avengers, the Scarlet Witch has returned from being in hiding (of a sort) for years. Her last real interaction with her old team and mutant kind was not a pleasant one. She went mad and attacked the Avengers, leading to the deaths of Ant-Man in an explosion and her own husband, the Vision, at the hands of a berserk She-Hulk, and Hawkeye  was lost to a Kree warship as her reality warping powers basically engineered the worst day ever for the team. Not long after that an event called House of M happened and it ended with her essentially depowering thousands of mutants, many of whom were killed in the aftermath by religious terrorists.
My question is: once the Avengers vs. X-Men crisis is over, could any of those people affected actually seek legal action against her? I’m sure that the Avengers will forgive her, since they tend to take a lot in stride and be really forgiving even when they should be still rather angry, but isn’t it on the shoulders of the government to prosecute for deaths anyway? And not to mention thousands of mutants who have lost their powers who might not have wanted it, and the families of those killed in the aftermath? Frankly, how can she possibly actually remain a hero and not stuck in jail for the next millenium?
The Scarlet Witch’s madness is a great example of comic book writers’ (understandable) tendency to overlook the consequences of their larger-than-life plots.  So would Wanda be on the hook either criminally or civilly?  Or would she have a viable insanity defense?
I. Insanity
We’ve talked about the insanity defense a few times before (here, for example), usually concluding that it doesn’t apply.  This may be one of the cases in which it does.  The Scarlet Witch’s madness may have been caused by some sort of possession or it may have been a more common sort of mental illness, perhaps related to the deaths of her children.  Psychic possession could be a kind of insanity or it could simply eliminate the mental state required to commit a crime; either way, that would be an effective defense.  But what if the Scarlet Witch wasn’t being actively controlled but was merely ‘ordinarily’ mentally ill?
Unlike many supervillains, Wanda may actually be legally insane.  As Dr. Strange describes her in Avengers #503: “Reality controls her. … Reality, eventually, as she knows it, starts to slip away. Elude her.  Blur.  … She loses herself, her reason. … [Y]ou’d say to yourself, this sounds like a person who has lost control of themselves on a deep psychological level.  You’d say this sounds like a disturbed person.”  That sounds a lot like it would satisfy the most common insanity test, the M’Naghten test: whether “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
II. Liability
But supposing Wanda wasn’t insane, she could face both civil and criminal liability.  However, in the US system the government is not strictly required to prosecute any particular crime, and you can imagine how it might be reluctant to try to go after someone as powerful as the Scarlet Witch.  Even so, the depowered mutants, Ant-Man’s survivors, and Hawkeye’s survivors could probably all sue her in civil court.  The nice thing about a civil case is that if the Scarlet Witch doesn’t show up after appropriate efforts are made to serve her with process, then the plaintiffs could get a default judgment.  I don’t know if she has bank accounts or other assets that could be seized to satisfy a default judgment, but if she does then that could provide some relief to the injured parties without having to actually get her to show up in court.
III. Conclusion
The Scarlet Witch has a plausible insanity defense.  However, while she might not be guilty of a crime or liable for any torts, I’m not sure that makes Captain America’s decision to offer her a spot in the Avengers more sensible than it would if she had committed the crimes in a sane state (although she declined the offer).

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Posted in criminal law, X-Men

Cerebro and Privacy Laws

Posted on June 25, 2012 by | 29 Comments

The X-Men movies feature Professor X’s Cerebro device, which amplifies the power of telepathic mutants, allowing them to find other mutants anywhere in the world.  In X-Men: First Class, Professor X and Magneto collaborate with the US government to assemble a team of mutants.  Although the movie is set in the early 1960s, Cerebro (nowadays called Cerebra) is also used in stories set in the modern day.  What’s more, it’s used to collect information on mutants around the world.  This caught the attention of Law and the Multiverse reader Mathias Ullrich, who wrote a great guest post on the subject using First Class as an example:

A data-protection consideration of Prof. Xavier’s recruiting methods according to German law

When reading the article about the responsibility of Prof. Xavier as the principal of a full time school some weeks ago, I started wondering about Prof. Xavier’s way of recruiting. As a data protection officer in Germany, my attention turns to data protection concerns.

As I’m not so familiar with the X-Men, I’ll stick to the movie X-Men: First Class. To analyze the whole process, I divide it into the different relevant steps:

1) data acquisition by telepathy

2) merging the data with another database (e.g. the CIA database) in order to get real addresses

3) offering specific services

4) deletion / blocking of the personal data

Some basics about the German data protection law: The German implementation of the European Data Protection Directive (“Directive 95/46/EC”) is one of the strictest implementations in Europe and is probably the strictest data protection law in the world. It’s called the “Bundesdatenschutzgesetz” or BDSG in short. In general it says that data processing of personal data is forbidden, unless there is an authorization of it in either the BDSG or other laws. So every data acquisition and processing needs an authorization.

Is German law applicable?

The first question we need to answer is if German law applies, when somebody in the world is acquiring customer data. The answer is quite simple: if there is an acquisition of personal data from German citizens, then German law can be used. This is similar to the discussions regarding Google Analytics or Facebook.

What kind of organization are the X-Men?

As stated in a recent blog post, Xavier’s School is a private school.

Step 1: the acquisition

When Professor Xavier searches for mutants, he is gathering data about the health status and some other information about potential students. Health status is one of the so-called “special kinds” or sensitive kinds of personal data according to §3 Abs. 9 BDSG, alongside racial and ethnic origin, political or religious belief and some more.

Acquiring and processing these kinds of personal data has some special rules. As said before, the German data protection law forbids unauthorized data processing, so we need to find permission.

From the reaction of the mutants visited by Magneto and Professor X, I assume none of them gave permission for acquiring the data. So I would also say that Professor X did not inform the people concerned about the concrete use of the data. This is mandatory. It is illegal to acquire data without the knowledge of the person concerned (§33 Abs. 1 BDSG).

Let’s go back to the acquisition. In §28 Abs. 6f and 9 BDSG we find the exceptions.

It’s possible to acquire these data without an explicit permission, if

- it is vital to the person concerned and he / she is not able to give the permission (§28 Abs 6, Nr. 1 BDSG)

- the data is has been made public by the person concerned (§28 Abs 6, Nr. 2 BDSG)

- the data is necessary for a legal transaction (§28 Abs 6, Nr. 3 BDSG)

- the data is necessary for medical research, if this research cannot be done without (§28 Abs 6, Nr. 4 BDSG)

- the data is necessary for medical care, if the acquisition is made by a doctor or somebody else with an obligationtoconfidentiality (§28 Abs 7 BDSG)

- the acquisition is made by a political, philosophic or religious organization without financial interest, but only for their members or associated people.

I do not think any of these exceptions apply. That means that the acquisition of the health status of the possible new students is illegal according to German law.

Step 2: the merging

After acquiring the data, I assume Professor X needs to get information about the new students, he wants to visit. Therefore, he merges the data with some database, according to the movie, it might be a CIA database. Here we have the exact same circumstance as in step 1. With just one exception more.

§28 Abs. 8 BDSG says, that the proceeding or transmitting sensitive data is allowed, if it is needed for defense of public safety.

Of course, thinking about maniacs who try to take over the world, the merging sounds legit, but the merging did not fight a concrete danger. It is more a “long term” investment. Unfortunately the acquisition of the data is still illegal and where did the CIA get data about European citizens? But that is another question, which will not be answered here ;-)

So, the merging might be legal, because of the exception for defense of public safety.

Quick note: §28 Abs. 8 BDSG only allows the processing or transmitting of data, not its acquisition.

Step 3: the offering

The last step is the personal visit to the possible new student in order to offer a personal service, in this case a place in Professor X’s private school.

As this is just again data processing, the same legislation applies as in step 2. So, maybe it’s legal because of the defense exception, but that need be discussed.

Step 4: blocking and / or deletion of data?

 In German data protection law, no data should be stored forever. As soon as the purpose of the data has expired, the data needs to be deleted (§35 Abs. 2 BDSG) or at least blocked.

When looking at the reaction by Wolverine, visited by Magneto and Professor X, one can assume that the purpose is expired, as Wolverine seems not to be interested in the offer. As we know, since Wolverine joins the X-Men later, the data may be blocked and not deleted.

Let’s check the terms for blocking instead of deleting, which are stated in §35 Abs 3 BDSG. Blocking data is allowed,

- if there are any laws or other legal issues that prohibit the deletion

- if it can be assumed that a deletion would affect the interests of the person concerned

- if the deletion is not possible or only possible with high effort because of the special way of storing the data

Again I do not think any of the exceptions apply. The data must be deleted, not blocked, at least as far as we are talking about a real database (e.g. the CIA one). If Professor X keeps the information in his mind, this is not affected by German data protection law.

Conclusion

Of course, there are a lot of unanswered questions, which make a final analysis quite difficult. Is telepathy acquisition of personal data and does German law apply here at all? Where is the data stored and how?

Besides that, the conclusion is quite simple. The acquisition was not legal, so every step beyond the first one, such as the uses the data from step 1, was illegal as well. According to §43, Abs. 2 Nr. 1 this is an administrative offense, with a penalty of up to 300,000 Euro in each case.

Translation guide

 Using §1 BDSG as an example:

- ‘§’ or Paragraf means paragraph in English, in this context it is translated to ‘section’.

- ‘Abs.’ is the abbreviation for ‘Absatz’. In this context it is ‘subsection’. In the example an ‘Absatz’ is marked by the brackets.

- The next one is Nr. (‘Nummer’), which means number. It is the next subsection, and in the example it is marked by the normal ‘1.’

- ‘Satz’ means sentence, if referring to a concrete sentence of the text, one uses ‘Satz’.

 

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Posted in guest posts, movies, privacy law, X-Men

Who Owns Wolverine’s Bones?

Posted on May 18, 2012 by | 57 Comments

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, ”on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

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Posted in constitutional law, contracts, mailbag, property law, X-Men

Xavier’s School for Gifted Plaintiffs

Posted on March 9, 2012 by | 12 Comments

Xavier’s School for Gifted Youngsters (aka the Xavier Institute) has existed in several most versions of the X-Men as a place of safety for young mutants, a training ground for future X-Men, and a private school.  These purposes are somewhat in tension, however, and students are sometimes injured either in the course of instruction or because of attacks on the school.  That leads to today’s question from Frank, who asks: “Is Professor X responsible for minor students in a parental capacity? What happens when one of them is injured or killed while at school?”

There are a few different aspects to this question.  First there’s the question of the school’s institutional liability, and second there’s the question of Professor X’ (and the teachers’) personal liability.

I. Institutional Liability

Xavier’s School is a private school in New York.  It’s usually written as a charitable school.  In some states this would entitle it to a certain degree of immunity, but New York (unlike, e.g., New Jersey) rejected the doctrine of charitable immunity several decades ago.  Bing v. Thunig, 2 N.Y.2d 656 (1957). So if the school can be sued, what could it be sued for?

The most likely cause of action is negligence: negligently allowing students to take part in dangerous activities, negligently failing to prevent superpowered students from harming one another, negligently failing to protect the students from outside threats, etc.

Normally one isn’t liable for failing to protect someone else from harm, but certain special relationships (e.g. parent/child) can create a duty to rescue, protect, or supervise.  Schools have such a relationship with students:

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.  A teacher owes it to his or her charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances.  The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994).  So while a school may not be liable for every injury caused by a student, it will be liable if the injury was the result of inadequate supervision.  What’s more, since Xavier’s is a residential school, this duty is basically continuous, because “Ordinarily, the duty of care imposed on a school district, and in this case a private school, terminates upon a student’s release from their physical custody.”  David XX v. Saint Catherine’s Center for Children, 699 N.Y.S.2d 827, 830 (App. Div. 1999).

So the school’s liability will ultimately come down to whether the teachers and staff acted reasonably and whether the injury was foreseeable.  If the teachers follow all the right protocols but a superpowered delinquent blows up the school, well, that’s tough.  Similarly, a random attack by evil mutants may be unforeseeable, so it doesn’t really matter whether the school took reasonable precautions to protect the students from such an attack or not.

II. Personal Liability

“A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties.”  Mary KK v. Jack LL, 611 N.Y.S.2d 347, 348 (App. Div. 1994).  Of course, the employee is also still liable (and the employer can turn around and seek compensation from the employee for any damages the employer has to pay out), but most plaintiffs prefer to sue the party with deeper pockets.

But as the quote suggests, the employer is only liable under certain circumstances.  As the Mary KK court said, ”What constitutes the scope of employment is generally a jury question, but” there are some guidelines.  ”An act falls within the scope of an employee’s duties when the employee is doing his master’s work, no matter how irregularly, or with what disregard of instructions. On the other hand, there is no respondeat superior liability for torts committed for personal motives unrelated to the furtherance of the employer’s business.”  Murray v. Watervliet City School Dist., 515 N.Y.S.2d 150, 152 (App. Div. 1987).  More specifically, courts and juries look at factors such as:

the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated

Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979).  Sometimes the school might be vicariously liable, but it won’t be liable for the actions of “rogue” (no pun intended) employees.

III. Conclusion

We certainly hope Xavier’s has a serious insurance policy (or three).  Not only could it be sued, but it’s a magnet for serious injuries.  Waivers can help for voluntary activities, but not there are limits to what can be waived.  Of course, if the school goes beyond negligence and into the realm of gross negligence or intentional misconduct then its insurer may not cover it at all.

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Posted in insurance, mailbag, torts, X-Men

Are the X-Men Human? A Federal Court Says No

Posted on December 27, 2011 by | 11 Comments

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

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Posted in administrative law, international law, tax law, X-Men

Magneto’s Scheme in the X-Men Movie

Posted on December 16, 2011 by | 24 Comments

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

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Posted in constitutional law, mailbag, movies, X-Men

Superheroes and Flying I: Air Safety and Registration

Posted on December 27, 2010 by | 29 Comments

According to the Federal Aviation Administration, there are approximately 7,000 aircraft in the air over the continental US at any given time. That looks something like this. Congress has claimed sovereignty over U.S. airspace and has given authority to the Administrator of the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103.

So what does this mean for our flying superheroes?

Continue reading →

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Posted in administrative law, Batman, Iron Man, Superman, X-Men

Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Posted on December 14, 2010 by | 29 Comments

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

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Posted in criminal law, superheroes, supervillains, X-Men

Hearsay and Professor X

Posted on December 3, 2010 by | 34 Comments

[Be sure to read the update to this post in Law and the Multiverse Retcon #2!]

This post was inspired by a question on MetaFilter Projects: “Can you write one on the admissibility of evidence obtained through Professor X’s mind-reading abilities? I’m sure it would implicate Fifth amendment issues as well.”  We can analyze this question under the Federal Rules of Evidence.  Be warned: this is a long one.  The short answer: it’s probably admissible, though hearsay is an issue, and the Fifth Amendment is not a problem.

I. Relevance

First we must ask “is the evidence relevant?”  FRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  This is a very low bar, and FRE 402 provides that relevant evidence is admissible by default.  But the question must still be asked “is a telepath’s claim about the contents of another person’s head relevant?”

I think the answer is yes.  The telepath could be lying, but that’s true of any witness.  The telepath’s credibility must be judged by the fact-finder.

The telepath could be a fraud, but the judge could require that the telepath’s powers be proved prior to offering the substantive evidence.  FRE 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  By way of example FRE 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”  The accuracy and reliability of a telepath’s power fits that example.

II. Exclusion under FRE 403

Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Of these, unfair prejudice is the greatest risk here.

The notes on FRE 403 state that “‘unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  A fact-finder may unfairly prejudice a party by giving undue weight to the testimony of a telepath, possibly completely ignoring the testimony of the original witness.  However, “in reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.”  It may suffice for the judge to remind the jury that it should also consider the testimony of the original witness.

III. Personal Knowledge

FRE 602 requires that a witness have personal knowledge of the matter being testified about.  This means that a fine but important distinction should be made.  The telepath would not be testifying as to the actual events the original witness had personal knowledge of.  Instead, a telepath would testify about his or her personal knowledge of what he or she read in the original witness’s mind.  It’s the difference between Professor X saying “John Doe shot JR” and “The witness remembers seeing John Doe shoot JR.”  Everything the telepath testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.

IV. Hearsay

Now we come to one of the biggies.  The general rule under FRE 801 is that “‘Hearsay’ is [an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion], other than one made by [the person who made the statement] while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

A complicated definition, to be sure, but maybe we don’t have to address it.  A person’s thoughts are not an oral or written assertion, nor are they a nonverbal action intended as an assertion.  Of course, it is likely that in a universe with psychics and telepaths the Federal Rules of Evidence would be amended to include thoughts.  Given that, let’s complete the hearsay analysis.

Assuming thoughts fit the first part of the definition, then we know the second part fits as well, since the telepath is not the person who made the statement.  The final part is whether the telepath’s testimony is offered to prove the matter asserted.  For example, when Professor X says “The witness remembers that John Doe shot JR,” is that being offered to prove that John Doe did, in fact, shoot JR?  If it is, then it is hearsay and inadmissible unless it falls under one of the exemptions or exceptions (which are beyond the scope of this post).  I will just say that there are many such exemptions and exceptions and that the hearsay rule would not exclude much of any importance.

V. The Fifth Amendment

Amongst other things, the Fifth Amendment protects a person’s right not to “be compelled in any criminal case to be a witness against himself.”  This right has some important boundaries, however.  The way in which many people think of the Fifth Amendment, “pleading the Fifth,” only extends to testimony by the witness at a legal proceeding.  A telepath’s testimony regarding the thoughts of another is not the same as the person’s own testimony.  It is the difference between “I shot JR” and “The defendant remembers shooting JR.”  So that aspect of the Fifth Amendment would not apply.

However, there is another aspect of the Fifth Amendment, which is the general right to remain silent. That right excludes confessions obtained without first informing a person of his or her right to remain silent during custodial interrogation (i.e. when the person is not free to leave).  However, the rule only applies to statements.  Other kinds of incriminating information may be extracted, such as fingerprints, mugshots, and DNA samples.  A telepath’s reading of a person’s thoughts would arguably fall under the latter, non-statement category.

VI. Conclusion

A telepath or psychic such as Professor X could read a criminal suspect or defendant’s mind, and the information thus learned would likely be admissible evidence and would not implicate a person’s Fifth Amendment rights.  During a regular trial the hearsay rule might exclude some such testimony, but much of it would fall under an exemption or exception.

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Posted in evidence, superheroes, X-Men