Monthly Archives: December 2010

Outlawry, Supervillians, and Modern Law

Posted on December 9, 2010 by | 21 comments

Before the modern period, the ability of the courts to enforce their authority was quite limited, shockingly so by modern standards. Court was only held in most English towns a few times a year, and it could easily be six or more months before the same court returned. This meant that the risk of a defendant, particularly a criminal defendant, beyond simply not showing up for trial but being completely un-locatable, was far greater than in modern times.

More than that, the mere fact that a court issued an order was no guarantee that said order would have any real effect. As an example, the English Court of Chancery stopped moving around from town to town in the mid-fourteenth century, meaning that most cases in equity were only heard in London, which unless you either lived there or were a landed aristocrat, you had probably never been to. So an order issuing from a court tens or hundreds of miles away, without any extant system of law enforcement–the first English professional police forces only date to the mid-seventeenth century, and the Metropolitan Police were not founded until 1829–was pretty easy to ignore.

So what was the legal system to do? Well, one common tool was “outlawry”, declaring a person to be beyond the protection of the law. The meaning of the sentence changed over time, and it ultimately disappeared with urbanization and doctrines like habeas corpus, but a growth in supervillainy might bring it back into fashion.

I. The Nature of Outlawry

When it was originally imposed in the Middle Ages, a sentence of outlawry was essentially a death sentence that the court did not believe it could immediately enforce, largely because the person was nowhere to be found. An outlaw was a person whom it was illegal to give any food or shelter, and whom it was legal to kill on sight as one might a wild animal. The pronouncement caput gerat lupinum, “Let his be a wolf’s head” (gotta be a lycanthropy storyline in there somewhere) set someone outside the bounds of civilized society. The theory was that a person who failed to show up to answer a felony charge was admitting their guilt.

Still, by the modern period, the definition of outlawry had shifted somewhat. Sir William Blackstone, perhaps the most famous English jurist in history, had already observed by the late-eighteenth century that while outlawry was still a potential sentence for criminals, it no longer permitted an outlaw to be killed at will. Rather, it permitted anyone to arrest them for prosecution and retained the penalties for aiding an outlaw.

Note that even this this arguably watered-down version of outlawry is significantly different from the way the word “outlaw” is used in modern parlance. “Outlaw” motorcycle gangs and “outlaw” country musicians are really nothing of the sort. Sure, there’s some at least feigned anti-social tendencies in both, and the former does even occasionally rise to the level of criminal activity, but neither represent groups of people who exist entirely outside the bounds of the law.

II. The Decline of Outlawry

For a variety of reasons, outlawry slowly fell out of favor in the legal system. For one thing, population growth and expansion made hiding from society increasingly difficult. A supervillain having trouble finding a place to put a lair should have cause to regret that they were not born a few centuries earlier, when there was still a huge amount of unoccupied and undeveloped land to be had. But even by the early modern period, circa 1700, Europe was pretty far towards occupying its remaining wilderness regions.

“Outlawry” does not seem to have crossed the Atlantic as an identifiable legal tool, as by the time of the founding of the American colonies, it was already disappearing in England. Even the famous “outlaws” of the Old West were generally not declared outlaws as such by a court of law. A lot of the bounties posted were either offered by private citizens or local law enforcement, both of which acted pretty much outside the legal system. In truth, the legal situation significantly resembled pre-modern England, where the reach of the court was pretty limited–many judges rode circuit on horseback–and local communities pretty much dealt with things on their own authority. But once civilization made it out there, the advent of the Fourteenth Amendment and the development of habeas corpus jurisprudence effectively ended the practice even in this unofficial basis.

III. Outlawry as a Weapon against Supervillains

So what happens when the Joker, or Magneto, or Doc Oc, or some other immensely powerful figure emerges and does what supervillains do? The whole premise of comic book multiverses is that there periodically appear people/things that society can only be protected from by specially-empowered individuals, that normal methods of law enforcement and even military intervention won’t necessarily work.

Fair enough. But that doesn’t mean that the courts are completely powerless, and it may be time to dredge up outlawry as a useful tool. If nothing else, declaring a supervillain to be an outlaw through due legal processes would permit superheros to go after supervillains whenever and wherever convenient. The issue here, rarely addressed in comic books, is that unless a superhero is working directly for the state, their ability to apprehend and kill anyone, even supervillains, is pretty limited by the law. If the Joker is threatening to drop a bus full of school kids off a bridge, yeah, Batman can do whatever, because deadly force is justified in preventing the deaths of others. But if the Joker is between capers, private actors, like most superheros, can’t go after them without exposing themselves to civil and criminal liability for wrongful death, impersonating an officer, false imprisonment, excessive force, etc. But if the supervillain were declared to be an outlaw, hey, all bets are off. Go nuts.

Second, declaring someone to be an outlaw would make it illegal to transact basically any business with them. Some supervillains may be magnificently rich, evil geniuses, but they still need to get their raw materials from somewhere unless they’re basically running their own country (which is, apparently, an option, albeit a rare one). In this sense, outlawry could be considered an absolute economic embargo targeted at a person or persons rather than a state or government. This could be a potentially useful tool in curbing the power and influence of supervillains.

IV. Reimplementing Outlawry

As discussed above, outlawry is basically gone as a legal sentence, and as useful as it might be, outlawry as it was originally defined is completely incompatible with modern concepts of due process. For starters, declaring someone guilty because they failed to show up for trial violates just about every procedural standard it is possible to name, chief of which is the presumption of innocence, an important civil right enshrined in Coffin v. United States, 156 U.S. 432 (1895), which held: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

So that’s probably out. But trial in absentia is probably out too, at least without some changes being made to the law. Federal Rule of Criminal Procedure 43 requires the presence of the criminal defendant, and Crosby v. United States, 506 U.S. 255 (1993) makes it pretty clear that a criminal who is arrested but escapes or absconds before trial cannot be proceeded against until he appears in court. It may be possible that a trial might be permitted to continue if a defendant is there at the beginning and then voluntarily leaves (see United States v. Lawrence, 161 F.3d 250 (4th Cir. 1998)), but simply bringing charges against someone and going to trial without them would probably not be permitted under current law.

Still, if I were the prosecutor, I’d make the argument that a supervillain that law enforcement is unable to apprehend but who damn well knows about the prosecution is a different case than your standard, underprivileged, uneducated, minority offender that the legal system is right to try to protect from being railroaded or lynched inside the courthouse. One might even limit the definition of “supervillain” to “one who possesses powers or abilities so far in excess of ordinary human beings that forcefully apprehending them would either be impossible or almost certainly cause significant loss of innocent life.”* This might constitute a violation of equal protection, but there’s a good case to be made that such an approach would survive strict scrutiny, in that it is 1) directed at a compelling governmental interest, 2) narrowly tailored, and 3) the least restrictive means of accomplishing said interest. Given that a challenge of this sort would probably be first attempted against a notorious villain the cops are unable to apprehend, and that a sentence of outlawry would manifestly assist both superheros and traditional law enforcement in their efforts against said villain, the pressure to find some way of carving out an exception would be pretty significant. Then again, hard cases make bad law, so whether or not this is a good thing remains to be seen.

V. Conclusion

Outlawry is an old legal doctrine, one more suited to a time where the law is relatively powerless. As such, it has faded from use and is now almost unheard of. But the presence of supervillains might justify resurrecting the doctrine, and a few minor changes to the law could theoretically make this work.

*Note that this definition would exclude so-called “criminal masterminds” who lack any kind of paranormal abilities. So, for example, the Joker and Lex Luthor, under most of their instantiations, would probably fall outside this definition. But Iron Man or someone using Stark technology might not. And there would be litigation.

21 Comments

Posted in criminal law

Supervillain Real Estate

Posted on December 8, 2010 by | 40 comments

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).

40 Comments

Posted in international law, supervillains

Resurrection Redux: Crimes, Punishment, and Debt

Posted on December 7, 2010 by | 31 comments

Probate law is just one aspect of the law affected by death and resurrection. Criminal law and contract law are also implicated.

I. Resurrection and Criminal Law

The Enron scandal was one of the biggest financial scams in history, before the 2008 crash anyway. While there are certainly interesting issues to be discussed in the execution and ultimate unraveling of that scheme, the real supervillainy shows up right at the very end. Kenneth Lay was convicted of ten counts of conspiracy and fraud on May 25, 2006, but before he had been sentenced, he died. The official cause of death was listed as heart failure, and following well-established law (see, e.g., United States v. Schuster, 778 F.2d 1132, (5th Cir. 1985)), the judge vacated the conviction and the indictment. This meant that his estate got to keep all of the money he “earned” while at Enron, leaving the government and the people he defrauded entirely without remedy.

But what if he was somehow resurrected or reanimated after the judgment was finalized?

This blogger is unaware of any cases where a conviction had been vacated or abated by reason of the defendant’s death before his appeals were exhausted but was then reinstated when the defendant turned out not to have been dead. But given the seriousness with which courts tend to treat criminal convictions, it seems likely that a court would not hesitate to reinstate a conviction for a defendant who somehow stopped being dead.

There’s another potential wrinkle in here: what if someone is convicted for murder and then the victim comes back to life?

Actually, this one is could be pretty straightforward: if the victim was actually dead at some point, i.e. he really was dead, he wasn’t simply missing or presumed dead, then the elements of the crime are still complete. The defendant did, in fact, kill the victim. Whether or not the victim stays dead is not actually an element of any homicide offense. So it would seem that this is ultimately irrelevant, which is perhaps a little counter-intuitive but does have the benefit of simplifying things a lot. As courts tend to like rulings which alleviate the burden on their dockets, this is not an unlikely outcome.

If, on the other hand, the victim turns out to have merely been critically injured and then lost or hidden, as has happened too many times in comic book history to count, things do change somewhat. If the defendant has been sentenced to death, that sentence would probably be commuted, as the Supreme Court is pretty consistent about requiring a dead body before the death penalty can be invoked.  See, e.g., Coker v. Georgia, 433 U.S. 534 (1977). But it is unlikely that the conviction would be overturned entirely. A murder conviction includes all the elements of attempted murder, and a manslaughter conviction would probably include all the elements of aggravated assault. Whether or not a court would order a new trial probably depends on the facts of the crime and the reappearance.

II. Resurrection and contract law

In addition to vacating convictions, death also has an effect on contractual liabilities. If someone incurs a lot of debt and then dies, their creditors can go after the estate but will not actually be able to go after the decedent’s heirs. So what happens when a character dies, his estate is probated, and then comes back? The ins and outs of resurrection and probate have already been discussed, but here it is probably the case that the outcome is going to be pretty dependent upon the facts.

The sneakiest, most villainous hypothetical would be a character that deliberately dies/has himself killed, knowing he will be resurrected or otherwise return to life, in an attempt to avoid his liabilities. Here, there is a good argument to be made that in the courts’ preference for substance over form, a person would not be permitted to deliberately avoid their liabilities this way. Fraud is fraud, regardless of how it is accomplished, and this sort of thumbing your nose at the legal system is likely to piss off the judge. A pissed off judge will probably find some way to nail you, even if it involves creating new law to do it.

But what about the hero who is actually killed and is brought back to life where neither are of his own doing? Clearly there is no intent to defraud, but that doesn’t mean that a court will simply hand out a free pass. Contracts are contracts and debts are debts, and though neither will follow one beyond the grave, coming back from the grave would seem to require leaving its protections behind as well. Here, it seems plausible that a judge would base the treatment of any outstanding debts on the way that the character goes about the rest of his assets. If he wants a clean break and does not attempt to reclaim any of his property that has gone through probate, a court could easily adopt the position that hey, he did die, and as he isn’t trying to “undo” the legal effects of his death beyond the mere fact of his resurrection, allowing the debts to remain discharged makes some sense.

If, on the other hand, the character attempts to return as closely as possible to the legal position he occupied before he died, equity would seem to demand that his creditors be given the opportunity to reassert their claims.  In particular, the equitable doctrine of unjust enrichment would require that, at a minimum, any assets subject to a claim by a creditor could not be reclaimed by the resurrected character without also reviving the debt (no pun intended).

III. Conclusion

So it turns out that these are both examples of how the law might actually be more resilient than it might otherwise appear. Though resurrection does pose interesting issues for judges in both criminal and contract law, it would seem that the legal system already possesses the necessary doctrines and flexibility to handle them.

Commentary from James Daily

I generally agree with my co-author here.  I think there is one interesting edge case, however, and that is the treatment of characters who routinely come back from the dead as a matter of course.  For example, some characters have such powerful regeneration abilities that they will come back from the dead on their own (e.g., Doomsday, Claire Bennet, Lobo).  If someone ‘kills’ such a character only to have them self-resurrect in the expected fashion, has a murder actually been committed?  Note that at the very least attempted murder has been committed as has aggravated battery, so the defendant would still be guilty of a serious crime, but not murder, which would foreclose the death penalty, at least in the US per Coker v. Georgia.

I should probably first explain why attempted murder is still on the table, even if it were factually impossible to permanently kill the victim (e.g. the weapon in question could not actually have killed the victim or the victim would necessarily self-resurrect).  Factual impossibility is generally not a defense to an attempted crime; it suffices that the defendant intended to kill the victim or to cause grievous bodily harm.  It seems likely that any damage sufficient to temporarily kill a self-resurrecting character would fit the bill.

Regarding the primary question: one approach would be to analogize to cases in which the victim was briefly clinically dead but was later resuscitated and then recovered.  Unfortunately, I could only find cases in which the victim was resuscitated but then steadily got worse and ultimately died.  If any knows of a case on point, please let me know.

Instead we can turn to the legal definition of death.  This varies from state to state, but a majority hold that brain death is synonymous with legal death.  In 1975 the American Bar Association stated: “For all legal purposes, a human body with irreversible total cessation of brain function, according to usual and customary standards of medical practice, shall be considered dead.”  61 J. Am. Bar Assoc. 464 (1975).  This is not exactly the definition used in many states, but it’s close enough for our purposes.

In the case of a temporarily dead self-resurrecting character the damage done to the brain is demonstrably reversible.  On the other hand, it may still be irreversible according to the usual and customary standards of medical practice.  A criminal defense attorney would certainly try to argue that a self-resurrecting character cannot be murdered, but I think the courts would be unpersuaded.  The public policy against murder is very strong, perhaps the strongest there is, and the courts would almost certainly adjust their definition of death to encompass the temporary deaths of self-resurrecting characters.

31 Comments

Posted in contracts, criminal law

Superpowers as Personal Property

Posted on December 6, 2010 by | 14 comments

The superpowers of many comic book heroes and villains are often in a state of flux.  Powers can be gained, lost, used up, given away, abandoned, shared, and stolen, which sounds a lot like the attributes of property.  Comic book characters even speak of powers as though they were possessions.  Here we consider whether superpowers should be treated as personal property and the legal consequences of that view.

I. Why Property?

At first it may seem strange to view superpowers as property.  After all, we can imagine an alternative view, which is that superpowers are just extreme versions of intrinsic human abilities like a sprinter’s speed or a chess grandmaster’s intellect.  If someone intentionally cripples a sprinter, that person is liable in tort and criminal law for battery.  If someone takes away the Flash’s superspeed, why should that be treated differently?

I think the answer is that superpowers seem much more fluid and interchangeable than ordinary human abilities, and lost superpowers have a habit of returning, one way or the other.  A crippled sprinter may never run competitively again even if he or she is not permanently disabled, but powers drained by Rogue, for example, will fully return on their own after the effects of her power-draining ability wear off.

It should also be noted that viewing superpowers as property is not incompatible with also punishing the theft or involuntary loss of a superpower as a crime and tort against the person as well.  The mundane analogy might be to a person who uses a prosthesis.  Someone who forcibly took that prosthesis while the person was wearing it would be guilty of both theft and battery and liable for both conversion and battery.

II. Legal Consequences

One immediate consequence of viewing superpowers as property is that power-drainers like Rogue, Scrambler, or Leech may be liable for the tort of conversion and the crime of theft (or common law robbery, if you prefer) in addition to the tort and crime of battery for which they were likely already liable.  This would only apply to unjustified uses of the ability, of course.  Use of such powers against a willing subject or out of self-defense, defense of others, or necessity would still be justified.

But the consequences don’t stop there.  If Superman uses the power of a blue sun to bestow superpowers on another person, is that a taxable asset transfer?  Who would want to try to collect?

If two superheroes marry, share a power, then later divorce, could one be forced to give up the power during the division of assets?  Does it matter who had the power originally?  Even though the shared power may be a non-rival good, one of the two superheroes may still have a claim to exclusivity.  Perhaps the power is a trademark ability of one character, or maybe they signed a superhero pre-nuptial agreement that determined the disposition of any shared abilities.

If one superhero lends a power to another (or to a normal person), does that superhero have an implied right to its return?  In other words, is a bailment created?  I think the answer here is yes.

What about characters like Mimic that only copy the abilities of others rather than stealing or draining them?  Should there be an intellectual property-like exclusive right in superpowers?  For intrinsic abilities the answer would seem to be no, since providing such an exclusive right would not lead to the development of more or better superpowers.  But for superpowers that are the product of experimentation, subjecting oneself to dangerous radiation, etc, then perhaps there should be.  If a power-mimic can effortlessly copy a power that the original owner nearly died to gain, maybe there would be fewer superpowers produced in the first place since people would no longer think the risk worth the reward of a unique power.  On the other hand, there does not seem to be a shortage of powers in most comic book universes, so maybe the incentive is not needed.

The property rights view may also give rise to new business models.  Consider a superpowered individual who had an amazing power but who did not personally feel like becoming a superhero.  With a property right in his or her power (and the assistance of someone like Mr. M or Sage), he or she could rent it out or lease it to others who were willing to take on the responsibilities of superherodom.

III. Conclusion

There is a good argument for treating superpowers as property or at least a kind of quasi-property in many circumstances.  This treatment might lead to occasional complications, but it would also bring a lot of advantages and protections to superpowered individuals.

14 Comments

Posted in property law

I’m not dead yet! Resurrection and Probate Law

Posted on December 5, 2010 by | 22 comments

Superheros and supervillians too numerous to count have, for various reasons, been killed, lost, or otherwise presumed dead, only to come back at a convenient date. It’s gotten a little silly at times.

The legal system has pretty well-established rules for what to do when someone dies. If they’ve got a will, their property will generally be distributed according to its dictates (no naughty trying to disinherent current spouses!) and if they don’t have a will, i.e. they die intestate, the law is pretty clear about how their estate is to be distributed. Most states have adopted some version of the Uniform Probate Code, or UPC, which other than the UCC and MPC is actually one of the more successful uniform laws in terms of its adoption by the various states.

The law even has a way of handling situations where a person is not actually known to be dead but is clearly no longer around. A person who is legally absent, i.e. a person whose whereabouts are unknown for quite some time, will generally be presumed dead after a few years. Five to seven is pretty common, though interestingly for the citizens of Metropolis, New York only give you three (NY CLS EPTL § 2-1.7). It usually takes a court proceeding to get someone officially declared dead in the absence of a body, and in general, the courts will presume that a person is alive until there is clear evidence to the contrary or state statue operates to force presumption.

That last bit is actually of interest to our consideration of law and the multiverse. Pretty much every state has a statute saying that if one is legally absent for a specified period of time, a court can declare one to be dead. But a few states also have a provision that exposure to a “specific peril of death” can permit a court to rule one dead before the specified period expires. See, e.g., 20 Pa. Cons. Stat. § 5701(c). As superheros are exposed to specific perils of death basically all the time, and would not generally be suspected to be dead in the absence of such a peril, it seems likely that a court, or at least a genre blind one, would be willing to rule on a superhero’s death pretty quickly. Which makes things a bit complicated if they aren’t actually dead.

So what happens when, after they have been declared dead, a person turns up again? The Straight Dope has a good article on this subject, so I shall attempt to avoid repeating that discussion here, but their discussion of a rather interesting case on the subject could stand to be expanded.

Southern Farm. Bureau Life Ins. Co. v. Burney, 590 F.Supp. 1016 (E.D.Ark. 1984) is the big case here. In 1976, John Burney of Helena, Arkansas, ran into financial difficulties. On June 11, he was involved in a traffic accident on a bridge crossing the Mississippi River and managed to clamber over the railing and down the bridge into the river, where he swam to Mississippi instead of back home to Arkansas. He caught a bus and spent the next six years living in Florida as “John Bruce,” complete with a new wife and child, neither of whom had any inkling of his former life. He returned to Arkansas in 1982 to visit his father and was discovered. Unfortunately for him, Burley’s wife and business partners had filed claims on various life insurance policies taken out on him and received benefits totaling $470,000. The wife, who may have been annoyed at finding out that her husband had completely abandoned his family and set up another one, contacted the insurer immediately. The insurer was annoyed and promptly sued Burley into next Tuesday.

Here’s where things get interesting for whack-a-mole-type supers: Burley’s wife and business partners, who had no knowledge of Burley’s whereabouts and had assumed that he had died in the accident, wound up a total of $470,000 richer. The judge let them keep that money, theorizing that “the policy of the law is to encourage settlement of litigation and to uphold and enforce contracts of settlement* if they are fairly arrived at, not in contravention of law or public policy.” (Id. at 1022). Burley wound up being found liable for $470,000 plus interest–whether or not he paid is another matter–but the people who received property as a result of his death were permitted to keep it.

The implication here–and there really isn’t much case law beyond this, because most people who are presumed to be dead are actually dead–is that if a person dies or is presumed to be dead, courts are not going to be very eager to disturb the settlement of property distributed via inheritance or devise unless there is a clear statutory reason to do so. Many states have statutes addressing this subject, but they’re all over the place.

– Cal. Prob. Code § 12408 specifies that a person who reappears after being presumed dead may recover any of his estate which has not been distributed, but property that has been distributed is only recoverable if it is “equitable under the circumstances,” and not at all if five years have passed.

– Va. Code Ann. § 64.1-113 provides that property which has not been distributed and property which is in the hands of someone who received it as a result of the presumption of death shall be returned to the person presumed dead, but bona fide purchasers of estate property are allowed to keep it. Pennsylvania takes a different approach.

– 20 Pa.C.S. § 5703 requires that if a person is declared dead in whole or in part on the basis of his continued absence, no property can be distributed out of his estate without the distributee posting a bond for the value of the property. Clearly, a superhero who fears that he may erroneously be declared dead at some point should consider moving to Philadelphia.

– New York doesn’t seem to have a statute on this subject at all, meaning that any property distributed because a person is presumed to have died could be pretty difficult to get back.

So this really becomes a question of the state’s law where our supposedly deceased character’s will or estate would be probated. A returning or resurrected character could find that they get back most of the property they lost, or they could wind up with nothing. The longer they take to come back, the more likely the second outcome is.

*Apparently the insurance company never thought that Burley was dead, but it chose to settle with the claimants rather than fight. The judge reasoned that they had figured the likelihood of Burley actually being alive into their settlement.

22 Comments

Posted in estate law, property law, superheroes

Immortality and the law

Posted on December 3, 2010 by | 44 comments

Is being immortal illegal?

Probably not as such, but living longer than the standard three-score and ten, as many superheros in both major multiverses are wont to do, does create some interesting legal issues.

I. Successive alter-egos

As a preliminary matter, if our immortal has decided not to make his immortality known to the general public, he’s going to need an alter ego, some of the difficulties of which are discussed here. But being immortal adds another wrinkle: you’re going to have to do this on a regular basis. You’ll basically have to ditch your original identity once it becomes clear that you aren’t aging, and then you’ll probably need to do it again every ten to twenty years to avoid the obvious “Why haven’t you aged in the last decade?” sorts of questions. This means completely severing ties with people who don’t know your true identity and coming up with a completely new alter-ego, from scratch, every decade or two.

That compounds the difficulties, because in addition to the standard this-is-a-fraudulent-activity-anyway problems, you’re now replacing a fictional identity with another fictional identity. The odds of someone noticing something strange don’t go up with repeated brushes with the law.

In pre-modern times, this wouldn’t actually have been that big of a deal. Public records were basically non-existent, and proving that you were who you said you were was not really something the law looked too closely at. But with the advent of modern recordkeeping and property registries, this becomes much, much more difficult.

II. The Rule Against Perpetuities

Immortality also raises the specter of a now mostly abandoned feature of property law doctrine which is nonetheless used to torture first-year law students to this very day, the Rule Against Perpetuities. The RAP dates back to early-modern England, when it was realized that aristocratic families were so encumbering their properties with conditions on inheritance that it was becoming impossible to transfer good title to vast swaths of the countryside. In response, the courts imposed a rule that no interest was valid unless it could “vest,” i.e. become a present interest in a living person, within twenty-one years after the death of some person alive when the interest was created. In short, you’re allowed to create interests which vest in your kids, but you can’t perpetually encumber your property such that your grandkids won’t have clear title to the property.

What exactly are we talking about? Well consider a family farm. Say mom ‘n pop are sentimental about the farm, so they leave the farm to their son but put some conditions on it, like so: “To our son, we leave the family farm, but if he ever stops using it as a farm like we did, the farm will revert to the estate.” That would be permitted by the Rule Against Perpetuities, but an attempt to pass that restriction on to their as-yet-unborn grandchildren would probably not.

A lot of states have abandoned the RAP, as hereditary land dynasties are no longer de regeur, and simply administering the RAP was a pain in the neck. Law students are still taught it, more often than not, but no one really runs into this in practice.

Which in the context of any of the comics multiverses wouldn’t necessarily matter, as immortality would play merry hell with the property law even with the RAP. An immortal could easily put all sorts of restrictions on property he sells over the course of his unnaturally long life, creating right of reentry in himself. And because he isn’t going to die, that land would never, ever be able to used for something he didn’t permit, because it is impossible to grant better title to land than you yourself possess, ergo any restrictions placed by an immortal would remain on the property forever. This is clearly less than ideal, and though most superheros would persumably not be dicks about this, one can easily imagine a supervillain really mucking things up that way over time.

III. The Fee Simple and Alter-Egos

But that aside, the actual nature of the fee simple also presents some problems. In normal society, a person accumulates property slowly over the course of their lifespan, perhaps inheriting some from their parents, and then passes whatever they haven’t managed to spend on to their children. It has been this way for all of human history, and even though some families manage to accumulate more wealth than others, but even the longest dynasties die out after a while. The House of Habsburg was the most powerful family in Europe for almost four centuries, but none of its heirs currently occupy any positions of particular influence, and their wealth pales in comparison to newer fortunes. The natural cycle of life and death has ensured a more-or-less orderly transition of property from parents to children since the dawn of time.

But an immortal person could simply go on amassing property forever. The perpetual nature of the fee simple and the power of compound interest mean that even starting from abject poverty, an immortal person could become quite wealthy in a century or two and could become one of the wealthiest in the world if given a thousand years. Exactly why Apocalypse didn’t simply buy every last scrap of available real estate as it came up for sale over the millennia is probably because that would have been boring, but as the best form of land use control is ownership, any number of nefarious plots would be a lot easier to pull off if you just bought the damn planet.

This presents two problems. The first is with anonymity, i.e. creating and maintaining a fictional person who is really one of the richest people in the world just doesn’t work. An immortal who wished to remain largely anonymous would find it difficult to do that while maintaining any significant level of wealth, contributing to the other problems with maintaining an alter-ego. This is not an entirely academic point, as at least some degree of wealth will be necessary to avoid being forced to get a real job. There’s a reason Batman, Tony Stark, etc. have playboy-billionaire alter-egos: it explains how they can afford to spend all of their time running around in exotic suits chasing villains. Being Batman is cool and all, but one of the defining characteristics of being a vigilante is that no one is paying you to do it.

Then there’s the simple fact that owning property requires interacting with it on some level, even if only through intermediaries, and the odds are decent that over the course of maintaining a financial empire, someone is going to notice that you look exactly like you did fifty years ago. Again, if you’re public about your identity, that’s fine, but if you aren’t, this will cause problems.

There are two obvious practical solutions to this issue. The first is to assume that being a superhero is really expensive, which it may well be. Batmobiles don’t come cheap. But Wolverine doesn’t seem to need much more than clothes, motorcycles, and beer to do his thing, so that isn’t a universal solution. The second is to simply be in the business of giving away lots of money on a regular basis so as to avoid accumulating more than a modest fortune. That’s risky–even real estate is no guarantee of future income–but it is potentially workable.

Of course, there’s always the option of faking your own death periodically–or actually dying–and either becoming your own heir or picking up a new, fabulously wealthy patron. That or a continuity reboot.

The second problem with adding immortality to the fee simple is that unless an immortal actually conquers the world, it seems doubtful that he would be permitted to acquire property ad infinitum. Someone is eventually going to notice. Then a bunch of someones, including various state actors, and there’s a good chance the latter will be pissed. Authoritarian governments certainly wouldn’t permit a private citizen to own large chunks of their real estate, and even democratic governments would probably wind up reaching a point where enough is too much. This would raise interesting Fifth and Fourteenth Amendment issues. Seizing or interfering with property interests generally requires compensation under US law, and trying to carve out an exception for that for immortal people who are just too damn rich would raise interesting Equal Protection and discrimination issues, some of which have been discussed elsewhere. But if political pressure were strong enough, the courts and/or legislature would presumably make something up.

IV. Conclusion

So again, while being immortal doesn’t appear illegal as such, it does make keeping a low profile a bit more difficult, and the law would probably wind up making an attempt to literally capitalize on immortality more difficult than it sounds.

44 Comments

Posted in property law

Hearsay and Professor X

Posted on December 3, 2010 by | 34 comments

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

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

I. Relevance

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

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

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

II. Exclusion under FRE 403

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

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

III. Personal Knowledge

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

IV. Hearsay

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

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

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

V. The Fifth Amendment

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

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

VI. Conclusion

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

34 Comments

Posted in evidence, superheroes, X-Men

Federalism and the Keene Act

Posted on December 1, 2010 by | 41 comments

The Keene Act is a federal law in the Watchmen universe that prohibits “costumed adventuring.”  But it would it actually pass Constitutional muster?

The United States Congress does not have what is called a general police power; its powers are specified in the Constitution and anything not so specified is reserved to the states and the people by the 10th Amendment.  So for the Keene Act to be constitutional, there must be some justification for it in the Constitution.  Let’s take a look at the options.

First, let’s dispose of some powers that definitely don’t fit.  The spending power can be used to force states to pass laws that the federal government couldn’t pass itself by threatening to withhold federal funding.  South Dakota v. Dole, 483 U.S. 203 (1987).  The spending power is general enough that it could address this issue, but the Keene Act seems to be a self-contained piece of federal legislation, not a coercive act designed to prompt action by the states.  So while Congress could use the spending power to require the passage of state-level costumed adventuring bans (by, e.g., threatening to withhold law enforcement funding), that doesn’t seem to be the approach used in the Watchmen universe.

One route to making something a federal crime is to limit it to cases involving federal land, property, employees, etc, but the Keene Act seems too general for that.  No, we must go big, and that means the Commerce Clause.

The Commerce Clause is the mainstay of modern congressional authority.  Although it does have some limits (see, e.g., United States v. Morrison, 529 US 598 (2000)) the scope of the Commerce Clause has expanded greatly over the past century.  I think it could form the basis of the Keene Act.

The Commerce Clause is limited to interstate commerce, but there is an interstate market for crime prevention and investigation services (e.g., private security firms, private investigators, bounty hunters).  Firms and individuals involved in this market routinely work across state lines.  The Keene Act could be based on requiring, for example, that anyone working in such a market do so under their real identities.  The legitimate government interest would be the safety of consumers of such services; it is valuable for consumers of such services to know who they are dealing with.  Thus the Keene Act could satisfy rational basis review under the Commerce Clause.

It should be noted that the fact that costumed adventurers actually provide their service for free and often without contracting with clients is of no account, as is the fact that they may work only within one state.  The Commerce Clause extends to non-commercial transactions and even intra-state activities as long as doing so is necessary to make the interstate regulation effective.  Gonzales v. Raich, 545 U.S. 1 (2005).  If the local or non-commercial activity affects the interstate market, the Commerce Clause can reach it.  545 U.S. at 19.  The existence of costumed adventurers no doubt affected the market for regular security firms, private investigators, and bounty hunters.  If the aggregate impact on the market was substantial or significant, then that is enough.  Id. at 19-20.

This may seem like an extreme take on the Commerce Clause, but let us recall that this is the same universe in which Richard Nixon essentially became President-for-Life.  The federal government of the Watchmen universe is likely to be very powerful indeed, and that means a broad Commerce Clause.

[Credit: This post was inspired by this comment by Will Frank.]

41 Comments

Posted in constitutional law, superheroes, Watchmen

Superheros and alter-egos

Posted on December 1, 2010 by | 38 comments

Bruce Wayne is Batman. Clark Kent is Superman. Tony Stark is Ironman. Peter Parker is Spiderman.

And so it goes. Throughout the various multiverses, numerous superheroes have maintained alter-egos, either to protect their “normal” lives and loved ones or to disguise their true natures. Sometimes both.

Either way, the idea of an alter-ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

Legally, there is no reason Jekyll could not do this. The fee simple gives a property owner the right to dispose of his property in any legal way that he sees fit. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter-ego which led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e. if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

So the problem is not only in the creation of an alter-ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

I. Legal Status

The relationship between one’s “mundane” and “masked” identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g. Bruce Wayne becoming Batman, things are fairly straightforward, as one already has a full-fledged legal identity. But simply creating a new person out of whole cloth, as one would need to do if one were creating a new cover identity or faking one’s own death, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, undercover operations, etc., but there are two main facts about this which present problems for our superheros. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e. they are not intended to fully or permanently replace the original identity.

The basic problem then is that to create a new identity without government authorization requires the commission of a number of felonies, potentially including making false immigration statements (18 U.S.C. 1015), identification document fraud (18 U.S.C. 1028), perjury (18 U.S.C. 1621) and numerous related offenses under state law. And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification which a superhero wanting to create a new mundane identity for his masked persona would need to forge. Creating successive false identities all but requires one to engage in illegal activities. So much for being a law abiding citizen.

All of these may seem trivial, but Al Capone was eventually brought down, not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion. And if the illegality is not problem enough in its own right, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order.

II. Money Laundering

Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy: the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even cash transactions are no solution, as transactions over $10,000 must be reported to regulators and paying for anything more than $500 with cash will be reported as suspicious. So while the money being “dirty” in some sense, i.e. representing the proceeds of or being used for some unlawful activity (18 U.S.C. 1956) for disguising the origin and ownership of funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort which could easily trigger an IRS audit. As the Joker observed at one point, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” So again, it seems that our some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law, but even breaking the law in this way is no guarantee of success.

III. Evidence and the Sixth Amendment

Unfortunately, unless a hero plans to kill every villain with whom they come into conflict, bringing said villains to justice is actually made a lot more difficult the more a masked hero is involved in the case. It turns out that wearing a particular costume or uniform, which is how superheros and villains are normally identified in comic books, does not actually count as evidence that the person wearing them is, in fact, the same person all the time.

This is significant, because the Confrontation Clause of the Sixth Amendment reads “[I]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” The goal of the Confrontation Clause, as stated by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), is to “preserve reliability of evidence” by establishing procedures so that “reliability [may] be assessed in a particular manner: by testing in the crucible of cross-examination.”

A witness whose identity cannot be definitively established would likely be useless as a witness. Courts and legislatures have made exceptions to the Confrontation Clause for situations like child witnesses against their abusers, but these are mostly limited to permitting the child, visible to the court, to testify via closed-circuit TV so that they do not have to see the accuser. There is no precedent to suggest that an essentially anonymous person or a person operating under a known or obvious alias would be permitted to testify in court without revealing their actual legal identity. A clever defense attorney could easily point out that we don’t even let witnesses in the witness protection program testify in open court while disguised; why should we let a superhero?

The Sixth Amendment aside, it is not clear that the Federal Rules of Evidence would permit a masked person to testify at all. Federal Rule of Evidence 602 reads, in part, as follows:”A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It will be much more difficult to prove that a masked person was a witness to a particular event when there may be no evidence that the masked person on the stand is the same masked person who allegedly saw what he claims to have seen. It is common practice for attorneys to ask a few simple questions such as name, address, age, etc. to establish a witness’ identity before proceeding to elicit testimony. Such questions would be impractical for a masked person to answer without revealing their identity, and a refusal to do that might well cause a judge to exclude their testimony entirely. Again, we don’t let traditional witnesses disguise themselves, and there isn’t any obvious legal reason that a superhero should be an exception to that rule. As the FRE apply to both criminal and civil cases, so this could be a problem even when the Sixth Amendment does not apply. Something like Peter Parker taking pictures of Spiderman’s exploits might help, but again, someone needs to be able to testify as to the veracity of those pictures, and that would mean testifying about their origin under oath.

This is a legal problem inherent to the maintenance of an alter-ego of any sort. Even a person who starts life as a mundane and then dons a mask to fight crime will run into this.

IV. Conclusion

So creating a superhero creating an alter-ego is a bit more legally complicated than it might seem. In addition to the problems of actually creating one in the first place, the logistics of maintaining the persona are significant, especially when trying to do so legally. But even the simplest alter-ego, the normal person who occasionally fights crime as a masked crusader, will run into legal problems if they are called to testify to what they have seen.

38 Comments

Posted in Batman, civil procedure, criminal law, criminal procedure, superheroes