Category Archives: supervillains

All-Star Superman I: Criminal Liability for Lex Luthor

All-Star Superman is the non-canonical, bi-monthly limited Superman series written by Grant Morrison and drawn by Frank Quitely which ran from January 2006 to October 2008. It’s the second title published by DC’s All-Star imprint, designed to let authors take a new run at old heroes by freeing them from the constrictions of continuity, both retrospective and prospective, similar to the Marvel Ultimate series. While All-Star Batman and Robin the Boy Wonder was rather poorly received, All-Star Superman is generally regarded as a successful and interesting take on Superman. One can say without offering much of a spoiler that the whole premise of the series is that Superman learns he is terminally ill and sets about setting his affairs in order before his impending death, setting the scene for a rather more poignant and thoughtful set of stories than one would normally expect from the Man of Steel. It also presents a pair of related legal issues which we’ll consider here: is Lex Luthor criminally liable for Superman’s death, and even if he were, how would one go about prosecuting something like that? This time we’re going to look at the first issue, saving the second for another post. Continue reading

Supervillains and Competency

Last week we addressed the issue of whether or not supervillains could successfully employ the insanity defense in their criminal prosecutions. The answer we came up with was “It depends, but frequently not.”

This week we’re going to look at the issue of competence, which is a related but different matter. In short, while the insanity defense can turn a verdict from guilty into not, an incompetent defendant can’t go to trial at all, usually resulting in their commitment to a mental facility until such time as they are able to do so.

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Supervillains and the Insanity Defense

The fact that it is possible to defeat a criminal charge by pleading insanity, even temporary insanity, is a permanent fixture of American crime storytelling, and comic books are no exception. The Joker, the Riddler, Poison Ivy, Two-Face, all have spent time in the Elizabeth Arkham Asylum for the Criminally Insane.

But is that really how it works? Actually… no. The insanity defense is fairly well-defined, and depending on the jurisdiction it seems like that a lot of supervillains would not actually count as “insane” in a way which would prevent their convictions.

Note that what we are talking about here is only whether a person can avoid conviction by virtue of insanity, not whether they are competent to stand trial. That requires a different analysis and one for another time.

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Supers and the Eighth Amendment

The Eighth Amendment to the United States Constitution reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The last phrase, “cruel and unusual punishment,” has a long jurisprudence extending back even before ratification of the Constitution. The phrase appears in the English Bill of Rights which was a key legal step in effecting the Glorious Revolution, and the Eighth Amendment in particular has been a major cause of the gradual reduction in the physical severity of judicial punishments in American history. Today, no state inflicts direct corporal punishment other than capital punishment, whereas as recently as the twentieth century, states were sentencing convicts to hard labor.

All of this may be interesting in its own right, but we’re only talking about it because we want to know whether it would be “cruel and unusual” to, say, sentence an immortal being like Apocalypse to life without the possibility of parole (LWOP).

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

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.

RICO and the Legion of Doom

Comic book supervillains, like real world criminals, often form groups and work together to advance their nefarious schemes.  The Legion of Doom, the Brotherhood of (Evil) Mutants, and the Evil League of Evil are examples of organized supervillain teams.  With organization comes a price, however.  Participating in these groups makes their members more vulnerable to criminal prosecution and civil claims under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO (there are also similar state laws).  But before discussing RICO and its applicability to supervillain teams, let’s first consider why other theories of criminal liability may not be the best fit.

I. Aiding and Abetting

Aiding and abetting may be a route to prosecution of members of a supervillain organization that “aid, abet, counsel, command, induce or procure” the commission of a crime by another, presumably another member of the organization. 18 USC 2 (state laws are similar).  The problem is one of proof.  Unless someone (perhaps whichever villain was caught in the act) testifies as to the nature of the scheme or some physical evidence ties a given supervillain to the crime (e.g. a diabolical device with Lex Luthor’s fingerprints all over it) the prosecution may have difficulty proving that a particular member of the organization aided or abetted the commission of the crime.

II. Conspiracy

At first glance conspiracy seems a better fit, but like aiding and abetting it has problems in practice.  Under US federal law, conspiracy generally requires an agreement between two or more people to commit an illegal act as well as for at least one member of the conspiracy to “do any act to effect the object of the conspiracy.”  18 USC 371.  However, at common law conspiracy did not require an overt act, and some states and specific federal conspiracy statutes do not have that requirement; mere agreement is sufficient.  See, e.g, United States v. Shabani, 513 U.S. 10 (1994).  It may seem like conspiracy is a fairly easy charge to run afoul of, but that low bar is justified by a strong public policy against conspiracy, probably because agreement makes it more likely that the crime will actually be committed and because cooperation can make possible more heinous crimes than could be committed by a single person.

But although the bar is low, evidence of agreement is still necessary.  Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other.  In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns.  Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization.  And plea deals only work if a supervillain is willing to testify in exchange for something.  A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.

Conspiracy is most useful if the entire organization agrees to cooperate on a particular criminal scheme, but that agreement may be difficult to prove if not all of the members actually participate directly in the scheme (remember the problems with relying on other members’ testimony).  If not all of the members participated in the conspiracy, or if their participation cannot be proven, then the organization can live on minus a few members, and in most comic books that means the roster will be filled out again within a couple of issues.  What’s needed is a way to take down the entire organization at once, particularly the leadership, even if direct involvement in a given criminal act cannot be proven.

III. RICO

The problems with conspiracy and aiding & abetting are problems in the real world, too, especially when dealing with organized crime.  For example, it can be very difficult to prove that a mob boss ordered a hit, especially if the members of the organization won’t testify.  This was the inspiration behind the RICO Act.

In a nutshell, RICO allows prosecutors to charge members of an organization  with racketeering if the organization has committed 2 crimes out of a list of 35 within 10 years (exhibited a ‘pattern of racketeering activity’).  The individual members charged with racketeering must also have done at least one of the following (this is a broad paraphrase of 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

As you can see, conspiracy has raised its head here as well, and in this context it is very useful as it stretches the already broad reach of the statute.  Whichever way it is accomplished, racketeering is a serious charge carrying up to a 20 year prison term as well as the possibility of treble damages in an accompanying civil suit.  For example, a member of the X-Men who was kidnapped by the Brotherhood of Evil Mutants could file a civil RICO claim.

Many of the crimes covered by RICO are inapplicable to a typical supervillain group (they don’t usually engage in bankruptcy fraud, for example), but several are likely to apply, including murder, kidnapping, arson, robbery, bribery, terrorism, and (federal) theft.  For some of the underlying crimes (e.g. murder, kidnapping), it is sufficient for the crime to be threatened.  Supervillain organizations frequently engage in many of those crimes.

It should be noted that in practice RICO is sometimes used against what you might think of as ‘proper’ organized crime groups or gangs, but it’s also sometimes used against more nebulous, loosely affiliated groups.  In those cases it can sometimes be difficult for prosecutors to prove the existence of a criminal enterprise.  That’s definitely not the case with groups like the Brotherhood of Evil Mutants or the Evil League of Evil.  Not only are they a well-defined organization with a leadership structure and a headquarters, they’ve got ‘evil’ right in their names!  It’s a prosecutor’s dream.

IV. Conclusion

RICO is clearly a danger to any traditionally-organized supervillain team.  A few successful convictions for kidnapping or robbery by less capable members could lead to racketeering charges and civil suits against the entire membership.  Forward-thinking supervillains might consider adopting a cell organizational structure that is more resistant to legal tools like RICO (and to infiltration by meddling superheroes)–or at least changing the group’s name to something a little less suspicious.

Superpowers and the Second Amendment

Although some superheroes and villains have powers that are harmless or at least not directly harmful to others (e.g., invulnerability, superintelligence), many have abilities that have no or only limited uses apart from harm (e.g., Cyclops’ optic blasts, Superman’s heat vision).  Although the government may be limited in its ability to discriminate on the basis of mutant status or innate superpowers, could the federal government or the states regulate superpowers as weapons without running afoul of the Second Amendment?  I think the answer is a very qualified yes.

(Before we begin, note that I’m limiting this to innate powers; it seems obvious that superhero gadgets could be regulated just like mundane weapons.)

The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller, 554 U.S. ___, 128 S.Ct. 2783 (2008) and McDonald v. City of Chicago, 561 U.S. ___ (2010).  The first case dealt with the District of Columbia’s ability to regulate firearms, and broadly speaking the second case applied the same limits to the states via the Fourteenth Amendment.  In particular, Heller held that the District of Columbia’s ban on the possession of usable handguns in the home violated the Second Amendment.  From those decisions we can get a sense of how a comic book universe court might address the issue of superpowers-as-arms.

I. The Scope of the Second Amendment

First, let us begin with the text of the Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Here is how the Court defined the individual terms.

“The people” refers to the people individually, not collectively, and not only to the subset of the people that could be a part of the militia.  128 S.Ct. at 2791.  “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the 18th Century.  Id. at 2791-92. Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity I will limit the rest of this post to a discussion of offensive abilities.

“To keep and bear arms” means “to have weapons” and to “`wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id. at 2793 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (J. Ginsburg dissenting)).  Taken together, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” but the right does not extend to any and all confrontations–there are limits. Id. at 2797-99.

The Court first addressed limitations established by past precedents: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id. at 2814 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).  Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Id. at 2815-16.

Beyond that, there are lawful limits on concealed weapons as well as “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Id. at 2816-17.  Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.” Id. at 2817.

With the scope of the right established, let us now turn to whether the government could regulate superpowers under the Second Amendment.

II. Analysis

We may start with the presumption that a superpower may be possessed and  used for lawful purposes such as self-defense.  The question is whether a given power fits into any of the exceptions that limit the Second Amendment right.

A. Concealed Weapons

First, many superpowers could be considered ‘concealed weapons.’  Before the Human Torch shouts ‘flame on!’ and activates his power, he appears to be an ordinary person.  Could the government require a kind of Scarlet Letter to identify those with concealed superpowers?  I think the answer is a qualified yes.  I do not think the Constitution would tolerate requiring innately superpowered individuals to identify themselves continuously.  That would seem to violate the constitutional right to privacy and the limited right to anonymity.  Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gunsafe in a home).   The real objection is to concealed weapons borne on the person in public.

Thus I believe the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g. goes out to fight crime).  Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g. Superman, the Human Torch).  Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training.  It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

B. “Typically Possessed by Law-Abiding Citizens for Lawful Purposes”

Whether this limitation encompasses a given superpower may depend on the number of superpowered individuals in a given universe and the balance of lawful superheroes to unlawful supervillains.  If superpowered individuals are relatively common, which seems to be the case in the Marvel Universe, for example, and superpowered individuals are generally law-abiding and use their powers for lawful purposes then superpowers would seem to be protected by the Second Amendment. If, on the other hand, superpowers are very unusual or if they are typically used unlawfully, then the government may be able to regulate such powers.

It seems to me that in most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception.  However, if certain kinds of powers are more commonly associated with law-breaking, then perhaps those powers in particular may be regulated, though in my experience powers of all kinds seem evenly distributed between heroes and villains.

C. “Dangerous and Unusual Weapons”

Here we come to the catch-all.  Superpowers are certainly unusual in an historical sense (not counting the Marvel 1602 continuity), and they are unusual in the sense that in most comic book universes superpowered individuals are a minority.  But perhaps it is the nature of the power that counts.  If a superpowered individual is approximately as powerful as a normal individual with a handgun (though perhaps one with unlimited ammunition), is that really so unusual?

Wherever the line is drawn, it seems clear that at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’ optic blasts, Havok’s plasma blasts).  These are well beyond the power of weapons allowed even by permit, and their nature is unlike any weapon typically owned by individuals or even the police and military.

III. The Nature and Scope of Regulation

Given that some powers are likely to fall outside the protection of the Second Amendment, how could the government regulate them?  We’ve already discussed the issue of concealed powers, but what about powers that fall into the other two exceptions?

I believe the government would take a page from the way it regulates mundane firearms.  First, all possessors of potentially harmful powers could be subject to a background check if they did not have the powers from birth.  If they failed the background check, they could be forbidden to use the power (although use in self-defense might still be allowed by the Constitution).  A registration scheme would be likely (Note, this likely would not run afoul of the Constitution because it does not apply to all mutants or superpowered individuals, just those with potentially harmful powers).

Second, exceptional powers could be subject to a permitting system including more thorough background checks and training requirements.  Some powers could be expressly prohibited outside police or military use.

Third, superpowered individuals who committed crimes–with or without their powers–may be forbidden from using them or even required to have their powers deactivated, if possible.  Following the decision in United States v. Comstock it may even be permissible to indefinitely detain a superpowered criminal after their prison sentence was completed if it was not otherwise possible to prevent future criminal acts.

What about uncontrolled powers, for which merely forbidding the use isn’t enough?  I think this falls outside the scope of the Second Amendment and is closer to the law of involuntary commitment.  If a superpowered individual is a danger to himself or herself or others, then he or she could be required to undergo de-powering treatment or be incarcerated for their own protection and the protection of society.

IV. Conclusion

The Supreme Court’s current view of the Second Amendment, though politically contentious, would give superpowered individuals greater protection to keep and use their powers largely free from government regulation or interference, with some important limitations.

Supervillain Real Estate

Every supervillain or supervillain organization worth its salt needs a secret lair, and a location outside the jurisdiction of any government would be ideal. The legal benefits are numerous: no pesky employment laws or civil rights for henchmen, no local police, no taxes.  But in the age of air travel and GPS is there anywhere left for a supervillain to set up shop? Here we consider three possibilities: unclaimed land, the high seas, and outer space.

I. Unclaimed Land

You may be surprised to learn that there are a (very) few places left on Earth that are unclaimed by any sovereign nation.  Perhaps the most reasonable is Bir Tawil, a 770 square mile stretch of desert between the borders of Egypt and Sudan.  There isn’t a whole lot there, but at least it’s relatively close to more interesting places, and the neighbors are probably too concerned with their own problems to care about a supervillain moving in next door.

The other major possibility is Marie Byrd Land, which is part of Antarctica.  At over 620,000 square miles it’s comparable in size to Mongolia or Iran and would be the 19th largest country in the world if it were one.  While no countries lay claim to this land, the Antarctic Treaty of 1959 expressly prohibits “any measure of a military nature, such as the establishment of military bases and fortifications.”  Although a supervillain, as a private entity, would not be bound by the treaty, that language might provide the basis for joint military action to oust a supervillain operating out of Antarctica.  The treaty does state that “Antarctica…shall not become the scene or object of international discord,” but it is doubtful that such language would give the signatory nations much pause before launching the cruise missiles.

A third possibility is purchasing an island from a sovereign nation, but it may be difficult to convince the owner to give up all claim to the island.  Ordinarily private islands like Richard Branson’s Necker Island still remain the sovereign territory of a nation (in that case the British Virgin Islands).  But there are many impoverished island nations, and an enterprising supervillain may attempt to strike a Faustian bargain for sovereign territory.

Unfortunately, being stuck on land makes a supervillain an easy target, and unless the supervillain can gain international recognition and thus sovereign status, the base is likely to be attacked without legal repercussions.  The main benefits here would be isolation and a lack of direct government oversight, not a legal shield against reprisal.

All in all, it would seem that actually setting up a permanent outpost without obscuring it in some way is going to be pretty tough. Unless the lair is constructed far underground or is somehow protected, a single pass by a BUFF can pretty much send any supervillain’s lair back to the stone age inside of twenty-four hours.

II. The High Seas

If no land is available or if mobility is a concern, then a supervillain can consider the oceans.  The primary governing treaty is the United Nations Convention on the Law of the Sea.  This gives some freedoms, including the right to build artificial constructs, but it also prohibits claims of sovereign territory, so a supervillain probably could not create a new floating nation. Still, as long as he avoided making territorial claims, there doesn’t seem to be any legal reason that a sufficiently large floating construct couldn’t just sail around forever.

Now, you might think that charges of piracy would be the biggest problem here.  The Convention does require signatories to “cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”  But piracy is defined as

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Strictly speaking this would not seem to encompass the operation of a floating supervillain base as long as the supervillain only attacked targets that were not on the high seas or otherwise outside the jurisdiction of any State.  But there are other problems for a seafaring supervillain, most particularly the lack of a national flag (presuming that a supervillain would not long be able to fly even a flag of convenience).  Article 110 provides that a warship may board a foreign ship on the high seas if “there is reasonable ground for suspecting that…the ship is without nationality.”  Worse than being hassled by passing warships, without the protection of a sovereign nation a supervillain would be fair game for outright destruction.  As with a land base, a supervillain would still be vulnerable so long as the base could be found and tied to the supervillain’s nefarious activities. Considering that just about anything on the surface of the ocean sticks out like a sore thumb, staying hidden is going to be pretty difficult.

III. Outer Space

Outer space probably represents the best bet for a supervillain.  Although the supervillain and his or her base would not have much in the way of direct legal protections in space or on the Moon, he or she would be protected indirectly by the Outer Space Treaty. The OST bans placing “in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install[ing] such weapons on celestial bodies, or station[ing] such weapons in outer space in any other manner.” It further states that

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

In the event of an actual supervillain taking up residence in outer space, these provisions would likely be ignored or repealed outright. However, the treaty has largely been respected in the past. The result is that space, especially outside of Earth orbit, is essentially unmilitarized (as far as we know). Beyond the technical difficulties of mounting an attack on a supervillain lair in space, the status quo means that the nations of Earth would be starting from scratch. This is a distinct advantage over a land or sea-based lair.

IV. Conclusion

A supervillain with effectively unlimited resources would be best served by a base located in space, probably on the dark side of the Moon. A supervillain with significant but not-unlimited resources might be better off buying a private island or a slice of Bir Tawil, then keeping a low enough profile to avoid attracting attention (and airstrikes).

The Multiverse and Res Judicata

In an infinite number of parallel universes, parallel versions of a supervillain will commit or attempt the same crime simultaneously only to be foiled by parallel versions of the same superhero.  Is there a good argument for trying the villain once and applying the verdict interdimensionally?  I think so, and in this post we consider the application of the res judicata doctrines of issue preclusion and claim preclusion to the Multiverse.

Many comic book series do not occur in a single, isolated universe but rather in a host of parallel universes, alternate dimensions, and Bizarro Worlds collectively referred to as the Multiverse.  Crossovers aside, both DC and Marvel series occur within their own respective multiverses.  For the sake of reference, the various parallel universes in these multiverses are numbered.  For example, the ‘normal’ world is Earth-616 in the Marvel Multiverse and Earth-0 or New Earth in the DC Multiverse.  There are an infinite number of such parallel worlds, most differing only in comparatively slight respects (e.g. the victory of the Axis powers in Earth-10; all of history up until that point was essentially the same).  So that’s the Multiverse.  On to the law.

Ordinarily, courts only like to consider a given issue or claim once.  This is done out of consideration of judicial efficiency, cost reduction, and finality.  The Supreme Court recently summarized issue preclusion thusly: “once a court has decided an issue of fact or law necessary to its judgment, that decision…preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case.” San Remo Hotel v. San Francisco, 545 U.S. 323, 336 n.16 (2005).

The Court summarized the distinction between the two doctrines in another case: “Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001).  The Court has also applied claim preclusion to criminal cases. United States v. Oppenheimer, 242 U.S. 85 (1916).

So what does this have to do with the Multiverse?  Consider Lex Luthor, plotting a dastardly scheme to stop Superman’s meddling once and for all.  As is so often the case, his plot will be foiled, and he will be brought to justice.  But Lex would have attempted the same plot in an infinite number of parallel worlds which differed only in ways that were immaterial to the plot and its prevention.  In the interests of cost savings, judicial efficiency, and finality, should the various Lex Luthors not be tried once, simultaneously, for all of them, both for criminal charges and civil claims brought against them?

The intuitive answer would seem to be yes, but there is a complication.  Which jurisdiction should be favored?  Or perhaps the better question is which jurisdiction should be forced into it, since that jurisdiction alone will bear the cost of the proceedings; it is not in any jurisdiction’s interest to volunteer.  But given the potentially infinite number of candidate jurisdictions, a random choice doesn’t make sense either: how can you fairly pick a number between 0 and infinity?

I think the solution is an Interdimensional Court of Justice, which would hear significant cases that would be too onerous for any one world to bear the cost of hosting or in which there would be a large efficiency gain in hearing the case only once.  A world that wished to have its version of a supervillain included in a case would chip in to help fund the IdCJ.  Since there could theoretically be an infinite number of such worlds, each world would only need to contribute an infinitesimally small amount.  Of course, coordination might be a problem.  In practice however, there only seem to be a few dozen parallel universes of any significance in the DC and Marvel multiverses, which makes the coordination problem much more manageable.