Nelson and Murdock’s first big break comes when the Fantastic Four approach the firm for representation.  We don’t get a lot of detail regarding the work, but Reed Richards describes it as “the lease on the Baxter Building, patents, that sort of thing.”  Foggy eagerly replies “We’d be happy to.  And anything else you might want to bring us, Mr. Richards.”  This is all incidental to the main storyline, but it raises an issue near and dear to my heart: the practice of patent law.

I. The Peculiarities of Patent Law

The practice of patent law can be divided into two broad categories: practicing before the Patent and Trademark Office and “everything else.”  Practicing before the PTO includes:

preparing and prosecuting any patent  application, consulting with or giving advice to a client in contemplation of  filing a patent application or other document with the Office, drafting the specification or claims of a patent application; drafting an amendment or reply to a communication from the Office that may require written argument to establish the patentability of a claimed invention; and drafting a communication for a public use, interference, reexamination proceeding, petition, appeal to the Board of Patent Appeals and Interferences, or other proceeding.

37 C.F.R. § 11.5.  That’s quite the laundry list, but basically, this means drafting and applying for patents, which can involve a lot of communication with the Patent Office, including some adversarial procedures in which a patent is opposed by another party.  It also includes giving advice and counsel regarding alternatives to patents, including those available under state law.  Note that it doesn’t include anything to do with trademarks; with one very narrow exception, only attorneys can do that, and any attorney can.  37 C.F.R. § 11.14.

“Everything else” includes other transactional matters (e.g. negotiating patent licenses) and litigation (e.g. suing for patent infringement).

Why does this distinction matter?  Because not just anyone—or any attorney—can represent someone before the Patent and Trademark Office, whereas any attorney can handle “everything else.”  Admission to practice before the PTO requires a technical background (broadly speaking: a bachelor’s degree in science or engineering or the equivalent, see here for the complicated details) and passing the registration examination, which is sometimes called “the patent bar exam.”  The examination consists of 100 multiple choice questions, mainly derived from the Manual of Patent Examining Procedure, the rulebook for patent examiners.  The pass rate for the exam is considerably lower than most state bar exams.

Notably, admission to practice before the PTO does not require a law degree or a license to practice law.  Non-lawyers who pass the registration exam become patent agents and lawyers who do so become patent attorneys.  Both have the same abilities to practice before the PTO, but only a patent attorney can handle “everything else.”  If a patent agent later becomes an attorney, he or she can pay a fee to have their registration changed to say “patent attorney,” but there is no functional difference.

II. So What’s the Problem?

Actually, there isn’t necessarily a problem.  Reed did say “patents,” not “patent applications,” so it could be that he’s talking about something like negotiating licenses or handling an infringement suit.  While patent attorneys often deal with the full spectrum of patent law, it is not uncommon for patent litigators or patent license specialists not to be patent attorneys.  So Reed could have a separate firm handle the work of obtaining patents (aka “patent prosecution”) and leave licensing and litigation to Nelson and Murdock.  Or Reed could even represent himself before the PTO, which is always an option even for someone who is not a patent attorney or agent, albeit not one that I would recommend, even for someone as smart as Reed.

Alternatively, Nelson or Murdock could be a patent attorney.  I couldn’t find any information on their undergraduate degrees, so it’s possible that one or both of them have the required technical background.  Statistically this is unlikely, since only about 7% of attorneys have a science or engineering degree.  R. Kim Craft and Joe G. Baker, Do Economists Make Better Lawyers? Undergraduate Degree Field and Lawyer Earnings, 34 J. of Econ. Educ. 263, 271 (2003).  Still, it’s possible, and Murdock clearly has an aptitude for mechanical engineering, since his billy club is chock full of clever gadgets of his own design.

III. Conclusion

It’s a pretty minor issue, but I couldn’t pass up an opportunity to talk about this particular quirk of patent law.  I’ll be taking a look at the other books in the Loeb & Sale series in the future, but until then I recommend checking out Daredevil: Yellow for yourself!

I. “War”

The dictionary gives several definitions of the word, most of which either involve large-scale armed conflict of one sort or another or are metaphors sounding on that concept. The first two definitions also include concepts of conflict between nations or states as such, but the farther down the list you go, the more metaphorical things get. It’s in this metaphorical sense that we get terms like the “War on Drugs” or the “War on Terror,” and even the “Cold War,” i.e, any big, unpleasant, protracted conflict may be described as a “war”.

But that’s not what the legal system means when it uses the term. “War,” in the technical sense, is largely limited to the first definition, i.e., “a conflict carried on by force of arms, as between nations or between parties within a nation.” This sounds like a very precise definition, but as we shall see, it’s somewhat squishier than that. For instance, the term “nation” has been used for a long time and was not as strongly associated with a particular national government as it is today. For example, if we exploit the breadth of the term, the American Civil War can be described both as a war within a single “nation” and between conflicting “nations.” The mere fact that there can be a dispute about that underscores the variety of meanings that can be employed here. This is a philosophical and political concept, and the legal system doesn’t really see its mission as defining those concepts. So Black’s Law Dictionary gives the following definition to “nation”:

1. A large group of people having a common origin, language, and tradition and usu. constituting a political entity. When a nation is coincident with a state, the term “nation-state” is often used.

2. A community of people inhabiting a defined territory and organized under an independent government; a sovereign political state. Cf. state.
NATION, Black’s Law Dictionary (9th ed. 2009)

The second definition comes closest to what laymen usually mean by “nation,” including as it does a requirement of some sort of sovereign government. But the first one says that nations usually constitute a political entity but are not necessary synonymous with it. So it’s possible to speak of continuity in “the British nation” despite the fact that the government went from a monarchy to a republic and back again in the seventeenth century. The nation has a government, but the nation is not the government as such.

Turning then to the term “war,” Black’s gives the following:

Hostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state; a period of such conflict. A state of war may also exist without armed conflict. . . .
Black’s Law Dictionary (9th ed. 2009)

So again, “war” means something equivalent to either (1) “large-scale military conflict” or (2) “a formal declaration of a state of war as between sovereign states.” Maybe but not necessarily both.

Whether or not a state of war exists is important for a variety of reasons. We touched on the insurance implications in prior posts. But war and the conduct of war is governed by the law of war, a body of public international law which is frequently used to punish wrongdoing, legally or diplomatically, after the war is over. A nation that disobeys the laws of war may find its soldiers and officers tried by foreign courts. Barring that, they’ll likely find themselves diplomatically unpopular, which will make peacetime negotiations all the more difficult.

But one of the biggest questions as to whether one is obeying the “laws of war” is whether they even apply. So, for example, an unprovoked surprise attack during peacetime is treated somewhat differently than a response to that attack. The former is not sanctioned by the laws of war, because no state of war existed before the attack. But the defending force could use whatever force necessary to repulse the attack and be entirely within the laws of war. A surprise attack during war time is one thing, and good on you if you can pull it off: there was a preexisting right to launch the attack. But a surprise attack during peacetime does not carry with it any such right, and one can expect such actions to be frowned upon. For instance, a nation that initiates a war with a surprise attack is unlikely to be offered favorable terms for surrender.

Note that a state of war can exist without a formal declaration, which we talk about in more detail in section III of this post. The US has only formally declared war six times. All the other “wars,” e.g., the Korean War, the Vietnam War, Gulf War I, Gulf War II, Afghanistan, didn’t involve a formal “declaration of war,” even though Congress did authorize the military action.

II. The Avengers at War

For starters, let’s deal with Nick Fury’s statement, towards the beginning of the movie, that “We are at war.” A few things here. First of all, it doesn’t matter who Nick Fury is, he doesn’t have the authority to declare war on anybody. In the US, such declarations only come from Congress. If S.H.I.E.L.D. is an international organization, it would serve its national masters and probably lack the power to declare war, period. But second, this probably isn’t just rhetoric on Fury’s part. The state of war is legally important, as it authorizes certain actions that would otherwise be problematic or impermissible, the most obvious of which is killing people. But a state of war can also trigger certain powers or procedures. For example, in times of peace the Coast Guard is part of the Department of Homeland Security, but in times of war it answers to the Department of Defense. Recognizing that a state of war exists would thus change the chain of command. It can also theoretically trigger logistical contingency plans, i.e., “If we ever do find ourselves at war, immediately do this, that, and the other thing.” While Fury doesn’t have the power to declare war on anyone, he might well have the authority to make the initial, tactical determination that a state of war exists, declared or not, and take whatever steps are appropriate to deal with the situation. Military officers in the field have as part of their orders the general Rules of Engagement, but those Rules generally permit the officer to do whatever is immediately necessary to preserve his command.

For example, take a look at the Rules of Engagement for the 1992 Somolia expedition. It explicitly states that “The United States is not at war,” but it also states “You have the right to use force to defend yourself against attacks or threats of attack,” and “Hostile fire may be returned effectively and promptly to stop a hostile act.” Fury is a bit further up the chain of command than a front-line infantryman, but he’s probably got the authority to respond to hostile actions as he perceives them.

So, does the Battle of Manhattan count as a war? It’s hard to see why not, especially under the first definition of large-scale military conflict. The Chitauri are obviously an organized military force. We talked about the fact that they aren’t human last year, and because they’re obviously sentient, technology-using beings, that isn’t likely to matter much. Take that out of the equation, and this looks a lot like Pearl Harbor, i.e., a surprise attack organized by a hostile military force. And it quite clearly is a martial force that quite clearly had the intent of conquering the world. It also represents some kind of foreign “nation,” in the broader sense of the term, as even if the sovereignty of the foreign power is unclear, it’s still a community of individuals sufficiently bound together to be able to form an organized military. Getting a court to hold that it was anything other than war is going to be tough to do.

III. Declarations of War

Although Congress has the constitutional power to declare war, it is not necessary for war to be declared in order for the United States to go to war.  This practice dates back to the undeclared naval war between the United States and France from 1798 to 1800.  In fact, the United States has only formally declared war on six occasions:

The War of 1812, declaration passed on June 18, 1812;
Barbary Wars, declaration passed on March 3, 1815;
Mexican War, declaration passed on May 13, 1846;
Spanish-American War, declaration passed on April 25, 1898;
World War I, declarations passed on April 6 (Germany) and December 11 (Austria-Hungary), 1917;
World War II, declarations passed on December 8 (Japan) and December 11 (Germany and Italy), 1941.

Obviously the United States has been engaged in far more than six wars in its history.  Thus, a formal declaration of war is not considered constitutionally necessary.

This is especially true of defensive wars, of which the Battle of Manhattan is an example.  It was well established before the Constitution was written that a declaration of war was not necessary if the nation was acting in self-defense.  As Hugo Grotius wrote in The Law of War and Peace in 1625:

To understand … the declaration of war, we must draw an accurate distinction between what is required by the law of nature. By the law of nature, no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime …. And no more necessary, by the law of nature, is any declaration when an owner wishes to lay hands on his own property.

This view continued through the revolutionary era.  ”Defensive war requires no declaration,” wrote Emerich de Vattel in The Law of Nations in 1758.  And that is still the view today.  International law forbids wars of aggression, but defensive wars require no declaration.

IV. Conclusion

In short, while Nick Fury isn’t going to be able to go out and formally declare war on his own authority, he probably is going to have the authority to call it like he sees it for the purposes of directing his agents. Similarly, a civilian court, when faced with the question, would be hard-pressed to call it anything but “war,” even if it is an undeclared, defensive war.

That’s a lot of money. By comparison, as the link notes, the total impact of the September 11th attacks was about $83 billion and Hurricane Katrina cost about $90 billion. This is about as much as the two of those put together.

So… who’s gonna pay for all that?

Well, we talked about this subject generally back in December 2010, and the analysis has changed little since then. But The Avengers gives us a chance to apply those general principles to a particular set of facts.

I. Insurance Policies

The obvious first place to look would be the various property owners’ insurance policies. This is going to run into immediate problems. One is reminded of the insurance dispute surrounding the September 11 attacks. Larry Silverstein, the new lessee of the World Trade Center, argued that each of the plane collisions represented a separate “occurrence” under the policy, essentially doubling his potential claim. A federal court, after a jury trial, decided that was largely not true, also dealing with issues raised by the fact that the contracts hadn’t been fully completed at the time of the loss, and recovery was capped at $4.55 billion, less than the $7-odd billion Silverstein had originally sought. So in light of that precedent, it seems that the entire battle would be treated as a single “occurrence” for the purposes of insurance.

But the bigger problem is that this loss may be excluded entirely. Insurance policies have pretty much always included exclusions for war and civil unrest, and in the aftermath of September 11, the federal government enacted the Terrorism Risk Insurance Act, Pub. L. 107–297, 116 Stat. 2322, as a sort of statutory, federal reinsurance mechanism funded both by policy premiums and the Treasury, to assist insurers in meeting their obligations in the event of a designated act of terrorism.

Thing is though, this doesn’t obviously seem to be an act of “terrorism,” which is defined in the statute to mean an act which causes loss of life or property damage “as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion.” This doesn’t seem to be what Loki and the Chitauri were up to. They just wanted to conquer the world. So the Treasury, State Department, and Attorney General might decide, between them, that this wasn’t really an act of “terrorism” for the purposes of the Act, and refuse to certify it. There would certainly be a lot of political pressure exerted on them in an attempt to make the insurers pay.

The linked article is wrong about one thing though: whether or not the loss is considered an “act of God” is irrelevant. We talked about this back in our post on Thor, where we noted that “act of God” provisions are typically part of contracts other than insuring agreements, because insuring agreements are specifically intended to cover what would count as “acts of God,” i.e., lightning strikes, floods, fires, etc. Regardless, the incident still implicates the war/terrorism exclusion(s), so there’s likely no coverage.

II. S.H.I.E.L.D.

If S.H.I.E.L.D. can at all be considered part of the federal government’s “military forces,” then S.H.I.E.L.D. and its agents (i.e. the Avengers themselves) are entirely immune from civil suits. Why? Because the Federal Tort Claims act specifically excepts “Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j).

So two questions. First, does S.H.I.E.L.D. count as part of “the military or naval forces”? Second, is this a “time of war”?

As to the first, we talked about S.H.I.E.L.D.’s potential status on Monday. We concluded that while the way the entity is portrayed is somewhat ambiguous, the best solution seems to be classifying it as a US entity with international participation rather than an international entity with US participation. In that case, it’s almost certainly part of “the military forces,” as it’s hard to conceive of this being under anything but the Pentagon. Even if it were like the Coast Guard, which is normally under the Department of Homeland Security, it shifts to the Department of Defense during wartime.

But even if it were an international organization, the way these things typically work is that agents aren’t answerable to the international group directly, they’re merely loaned from national forces. The most obvious analog is UN Peacekeeping forces, which are composed entirely of contributions by member states. Exactly how liability for this works is pretty murky. Here’s an article discussing some of these issues with respect to some of the Peacekeeping activities in Haiti. The US, as we’ve seen, is already immune from suit, so there’s no joy there. But the UN’s liability is generally limited by treaty to that of its member states. Otherwise you could have a situation where a member state misbehaved but is immune under its own laws and the rest of the member states have to pick up the tab. Not gonna fly. So as it turns out that no matter how you slice this, S.H.I.E.L.D. is going to be immune as long as this is “time of war.”

Which it probably is. As discussed above, calling this “terrorism” and not “war” is going to be a pretty tough sell. Loki and the Chitaurans were trying to conquer the entire world, not to affect US domestic or international policy or get the civilian population to do much of anything. Which looks a lot more like “war” than “terrorism.” But we could wind up with the rather hilarious prospect of the State Department sending a message to Asgard, asking Thor to produce Loki for questioning on his motives for the invasion. Regardless, the fact that it really was an invasion, not just a bomb plot, is going to make this look a lot like war, and it seems plausible that a district court could reach that conclusion pretty quickly.

In short: S.H.I.E.L.D., and the federal government generally, aren’t obviously on the hook to pay for this. It seems likely that Congress would pass an act specifically directed at paying for this disaster, something it’s allowed to do, but it wouldn’t be liable for the damages in court.

III. Conclusion

Really, the only way this is getting paid for is if the government and/or private actors decide to pony up, essentially out of the goodness of their hearts. One can see Tony Stark being fairly generous here (or just using the opportunity to buy a lot of desirable real estate on the cheap), and it seems impossible that Congress wouldn’t come up with at least some funds here. One interesting idea would be to declare all of the alien tech salvaged to be the property of the federal government, which would, in turn, dedicate revenues from the research and sale of such tech to go towards the rebuilding of New York and then saved for other such disasters. But it would take specific statutory action to make that work.

We are excited to announce The Law of Superheroes, a new book inspired by Law and the Multiverse!  The book features thirteen chapters covering a wide range of legal topics, including new and updated material from the blog as well as dozens of comic book illustrations.  The Law of Superheroes will be published on October 11, 2012 by Gotham Books, a division of Penguin.  You can pre-order copies from any of these booksellers:

Amazon

Barnes & Noble

Books-A-Million

Indiebound

iTunes iBookstore

Our programs from last year on ethics and torts are also still available online.

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

I. Stark Tower’s Zoning District

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

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

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

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

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

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

II. Getting Around Zoning Laws

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

A. Rezoning

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

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

B. Variance

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

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

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

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

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

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

III. So About Those Arc Reactors

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

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

IV. Conclusion

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

In the next few posts, we’re going to discuss some of the legal background of various aspects of the movie. We’re going to start with how exactly S.H.I.E.L.D. could work, but there will be more to come in successive posts. There are spoilers to follow, though if you haven’t seen the movie by now, what are you waiting for? We discussed the basics of S.H.I.E.L.D. and international law over a year ago, so it might be worth taking a look at that before jumping in here.

There are two basic questions. First, what exactly is S.H.I.E.L.D.? In the comics the acronym has stood for a variety of things, and over time it’s been portrayed as both a national and an international force. In the Marvel Cinematic Universe— the continuity formed by Thor, Captain America: The First Avenger, Iron Man, Iron Man 2, and now The Avengers, it stands for “Strategic Homeland Intervention, Enforcement and Logistics Division,” which Agent Phil Coulson admits is a terrible name and is quickly abandoned from common use in favor of the acronym itself. The implication in the movies leading up to The Avengers is that S.H.I.E.L.D. is some kind of U.S. paramilitary force. The word “Homeland” suggests some connection with the Department of Homeland Security, and it would be somewhat weird for an international organization to have that word in title.

But it’s not really made clear, and in The Avengers, Samuel L. Jackson Director Fury is seen conversing with “The Council,” his superiors in the organization or perhaps simply the body that calls the shots. If it were a U.S. national organization, this might be something like the National Security Council, which does have certain powers already such as the authorization of what amount to assassination missions, unlike the Joint Chiefs of Staff, which has no operational authority. But the problem with that theory is that judging from their accents, The Council seems to be composed of members from several different countries, though their faces are obscured and no information about their identities is revealed on screen. So really, it could go either way, and the details of S.H.I.E.L.D.’s operations in the movie cut both ways.

Certain things would just work better if S.H.I.E.L.D. were a domestic force. For one thing, as we’ve discussed in the past, Congress’s draft authority is pretty broad. So broad that unlike, say, the Commerce Power, the Supreme Court has yet to find a limit on it. This is good for S.H.I.E.L.D., because neither Captain America (Steve Rogers) nor The Hulk (Bruce Banner) are given much in the way of options about their attendance. Rogers isn’t exactly shanghaied, as Banner is, but unlike Stark, who is basically coaxed into participating, when Fury comes to Rogers with a mission, he acts like he has the authority to compel Rogers to play ball. Given that S.H.I.E.L.D. doesn’t seem to be permanently conscripting these guys, in that they’re basically allowed to go their separate ways at the end of the movie, the fact that S.H.I.E.L.D. is “drafting” specific individuals isn’t as much of a problem. Again, there’s no obvious reason Congress couldn’t do this, and it’s being done in the least offensive way possible, so that’s good. Exactly how S.H.I.E.L.D. would do this if it were an international organization is entirely unclear. They’re all American citizens with the possible exception of the Black Widow (Romanov), but she says she was Russian, so who knows? The idea that an international organization can start drafting U.S. citizens is… problematic at best. The U.N. has no such authority, and it seems beyond all possibility that the Senate and President would authorize any treaty to that effect. So this would be an area where it would be better if S.H.I.E.L.D. were domestic.

Also, there’s the issue of the nuclear strike on Manhattan. There is no way on Earth that the U.S.—or any other country for that matter—is going to consent to the creation of any international body that can order a nuclear strike on its territory. Just not gonna happen. Especially since there are something like nine countries which we’re pretty sure have nukes, and one of them is Israel, which is even less likely to be okay with the idea of other people being able to nuke them than the U.S. is. So given that S.H.I.E.L.D. can authorize a nuclear strike at all, it seems like it ought to be a domestic force.

But there are a few things which go the other way. For instance, the group seems to have jurisdiction just about everywhere. They pick up Banner in India, and Fury authorizes an op in Stuttgart (apparently) without even bothering to let the Germans know they’re coming. This is to say nothing about interfacing with air traffic control, but nations are usually kind of prickly about foreign military aircraft just sort of jetting around in their airspace, much less special forces groups conducting operations in their territory. If S.H.I.E.L.D. is an American entity, not an international one, this is starting to look a lot like an act of war. So on this point, it would be more convenient for S.H.I.E.L.D. to be an international group.

Clearly there’s some inconsistency here, and it’s not just us saying so.  Not even the real-world Department of Defense could figure out exactly what kind of organization S.H.I.E.L.D.’s role was supposed to be (thanks to andrew in the comments for that link).

On balance, from a legal perspective and making allowances for artistic license, it would be better if S.H.I.E.L.D. were an American organization. Movies pretty consistently ignore what would be acts of war in the real world, even in non-speculative/comic book political and military thrillers. So if we give them a pass on that bit, the way S.H.I.E.L.D. acts a lot of the time really looks like a domestic military force. There’s still a problem though, given that The Council does appear to have members from multiple nations, but there might actually be a way of fixing that. There isn’t actually any obvious reason the U.S. couldn’t start a military force completely under domestic authority but, in a spirit of international cooperation, permit representatives from select foreign nations to participate in its operations. Given that S.H.I.E.L.D. is involved in some pretty hairy and advanced weapons R&D, this might actually be a decent way of convincing our allies to support the project, as they could exercise some control over the organization, trying to keep it focused on extra-terrestrial threats. This is, of course, not discussed in the movie at all, but there isn’t any obvious reason it couldn’t work.

We’ll be writing about The Avengers all week. In the meanwhile, go see it!

I. The Set-Up

The episode is a twist on the story of Cinderella.  In this case, Lucinda has married her handsome (and wealthy) prince, who then proceeds to lose it all to a Ponzi scheme.  He appeals to Lucinda’s stepmother for money, who turns him down.  Shortly afterward, the stepmother is found murdered.  Perhaps unsurprisingly, the stepmother’s will gives everything to her own daughters and nothing to Lucinda.  But soon one of the stepsisters is also killed, and we are told that, if both stepsisters die then Lucinda will inherit everything, “will or no will.”

II. “Will or no will”

This is an interesting statement from Nick’s partner Hank, and it suggests that Lucinda would inherit under both the will and under the law of intestate succession (i.e. how inheritance is decided when there is no will), if both stepsisters are dead.  We’ll take a look at both possibilities.

A. “Will”

It’s entirely possible that the stepmother’s will names Lucinda as an heir if both of her daughters are deceased.  But of course the stepsisters died after their mother, so shouldn’t we look to the stepsisters’ own wills (or to the law of intestate succession)?  Not necessarily.

Oregon has adopted a version of the Uniform Simultaneous Death Act as ORS 112.570 to 112.590.  The relevant part is ORS 112.572:

Except as provided in ORS 112.586, if the title to property … depends upon whether a specified person survives the death of another person, the specified person shall be deemed to have died before the other person unless it is established by clear and convincing evidence that the specified person survived the other person by at least 120 hours.

The meaning or importance of this rule may not be entirely obvious at first glance.  It may help to imagine a hypothetical provision in the stepmother’s will, something like “If Daughter A survives me, then she shall inherit one half of my estate.”  Under the USDA, the daughter must survive the stepmother by at least 120 hours or else she will be regarded as having died before her mother, so her half of the estate would never pass to her.

Now imagine the will has a clause like “If neither Daughter A nor Daughter B survives me, but Lucinda survives me, then she shall inherit my estate.”  If Daughter A and B are dead within 120 hours of the stepmother’s death, then Lucinda could still inherit directly from the stepmother, barring any exceptions in ORS 112.586.  My recollection is a little fuzzy, but I think everything in the episode happens quickly enough that it could all fit within 120 hours.

It seems unlikely that the stepmother would give everything to Lucinda even if both of her daughters were dead, but I suppose it’s possible.  Their relationship was certainly frosty but not outright hostile.

B. “or no will”

Here, though, the straightforward answer is “no.”  The general rule is that non-adopted stepchildren cannot inherit from their stepparents by intestate succession.  In Oregon, the relevant law is ORS 112.045:

The part of the net intestate estate not passing to the surviving spouse shall pass:

(1) To the issue of the decedent. If the issue are all of the same degree of kinship to the decedent, they shall take equally, but if of unequal degree, then those of more remote degrees take by representation.

“Issue” is defined in ORS 111.005(22) as “adopted children and their issue and, when used to refer to persons who take by intestate succession, includes all lineal descendants, except those who are the lineal descendants of living lineal descendants.”  Stepchildren are not lineal descendants, and there’s no other provision in the Oregon intestate succession rules that Lucinda would fall under.

Notably, California has a rare (but very, very narrow) exception in Cal. Probate Code § 6454, but Oregon doesn’t have a similar provision and the California rule likely wouldn’t apply in this case anyway.

There is a catch, though.  Note that I said “non-adopted stepchildren.”  It’s possible that the stepmother adopted Lucinda, either before or after Lucinda’s father’s death.  Since her father died while Lucinda was still a minor, it’s entirely possible that the stepmother wouldn’t receive custody unless Lucinda was adopted.  And under ORS 112.175, adopted children are generally treated just like natural children for purposes of intestate succession.  So in that case Lucinda would inherit if there were no will.

This could also matter if there was a will.  If the will failed to state who inherited if both natural daughters were deceased (unlikely, but possible), then intestate succession would step in, and Lucinda would be next in line.

III. Conclusion

The “will or no will” bit strained credulity, but I’m willing to let it slide, since it could technically be true.

On another note, in another recent episode there was a reasonable reference to exigent circumstances before Nick and Hank barged into a house without a warrant.  It’s nice to see the show’s writers address that all-too-common issue on the show.  Who knows, maybe they read this site?

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

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

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

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

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

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

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

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

I. Eminent Domain

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

A. Public Hearing

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

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

B. Negotiations

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

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

II. Consequences

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

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

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

III. Conclusion

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