Author Archives: James Daily

Daredevil #1

Posted on August 16, 2011 | Leave a comment

Daredevil was recently relaunched with a new issue #1 (issue #2 comes out tomorrow).  The new series brings a more upbeat take on Matt Murdock, and importantly for us it also brings a new focus on Murdock and Foggy Nelson’s law practice.  Spoilers ahead:  Continue reading →

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Posted in civil procedure, evidence

Batman: No Man’s Land, Part 1

Posted on August 10, 2011 | 9 comments

Our first post on the No Man’s Land story arc is a short one dealing with an issue of contract law.  Spoilers will be part and parcel of our discussion of this series, but it came out in 1999, so we feel the statute of limitations has run.

I. The Setup

After an earthquake destroys much of Gotham, Batman is feeling understandably overwhelmed.  In order to prevent some of the looting and recruit some assistance, he appeals to Oswald Cobblepot’s self-interest: help me out because the sooner the city is up and running the sooner you can get back to being a crime boss.  The alternative is to get on Batman’s bad side, so the Penguin joins up.  We later learn (in Batman Chronicles #12) that this arrangement was enforced via a contract signed by the various thugs and mobsters.  That contract is the subject of this post.

II. The Contract

Unfortunately, we only get a good look at two of the contract’s nine clauses, and parts of them are obscured (our guesses are given in brackets):

ITEM EIGHT: In addition to the clause against looting (above) the undersigned hereby agrees to rob no one of faith.  Actions will be grounded in logic, but during the course of this mission, nothing will be stated nor implied to any person or persons with the express intent of crushing spirit or will.  The injuries encountered in an undertaking of this magnitude will not be limited to those of the body.  This [shall] be kept in mind at all times.

ITEM NINE: No guns or firearms of any kind shall be utilized [or] displayed.  The undersigned hereby acknowledges [that if he or she is] caught bringing firearms into Gotham City in the [course] of this mission, the undersigned will be prosecuted [to the] full extent of the law.

The meaning of “rob no one of faith” is apparently not to refrain from stealing from priests and nuns but rather not to steal someone’s sense of hope or faith that things will improve.  The clause comes up when a thug feels compelled to lie to a kid who asks “Were you guys sent by Batman?” (the thug says yes, though he does not know this to be the case).

This a well-intentioned clause, but unfortunately it’s pretty poorly drafted.  The principle faults are that it is vague, unnecessarily restrictive in parts, and yet also not restrictive enough in other parts.  (Item Nine is basically fine except that we would add “while carrying out the Mission” to the end of the first sentence.)

“Faith,” “spirit,” and “will” are all too vague.  Something like “refrain from inflicting emotional distress” is better defined legally and serves essentially the same purpose.

“The express intent of crushing spirit or will” means that the person would have to actually express their intent (e.g. saying something like “I’m going to go be needlessly cruel to that little kid.”).   That’s much more restrictive than necessary.  We want the thugs to do more than refrain from intentionally distressing people.  They should also take reasonable care not to do so accidentally.

“This shall be kept in mind at all times” is not restrictive enough.  Someone can happily keep in mind the fact that the earthquake survivors may be psychologically injured while negligently or recklessly rubbing salt in the wound.  It would be better if they had an affirmative duty to help, at least to a reasonable extent.

Instead, we might offer something like this:

ITEM EIGHT: In addition to the clause against looting (above) the undersigned hereby agrees not to intentionally, recklessly, or negligently inflict emotional distress upon anyone in the course of carrying out the Mission.  The undersigned shall act rationally while carrying out the Mission except as necessary in order to avoid inflicting emotional distress.  The undersigned shall make reasonable efforts to relieve the physical as well as emotional and psychological injuries of Survivors encountered while carrying out the Mission.

Of course, both Survivors and the Mission should be defined elsewhere in the contract.  Presumably the mission already is, but we can’t say for sure.

Another thing we would do differently: we wouldn’t stamp it with “From the desk of Bruce Wayne.”  Given that it was Batman that talked the Penguin into cooperating, it seems monumentally stupid to then use Bruce Wayne’s letterhead on the contracts.  It beggars belief that no one put two and two together.

A final general contract drafting note: there had better be an indemnification clause in there.  That is, an agreement that if the thugs harm anybody or their property while carrying out the mission, then the thugs will take the heat rather than Bruce Wayne.

III. Conclusion

So far No Man’s Land is off to a good start!  There are some good legal issues here, and although we’d expect a better contract from a Yale Law alumnus, Batman can probably be forgiven the sloppy drafting given the tight schedule and the stress of cleaning up after a massive earthquake and fire.

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Posted in contracts

Washington Magazine

Posted on August 9, 2011 | Leave a comment

James was interviewed for an alumni profile in the current issue of Washington, the magazine of Washington University in St. Louis.  Thank you to Michelle Merlin for a great interview and article!

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Posted in interviews and podcasts

Manhunter, Volume 5

Posted on August 3, 2011 | 6 comments

First off we’d like to announce the winner of our giveaway of a copy of volumes 1-5 of the Marc Andreyko run of Manhunter, as described in our previous post in this series.  Thank you to everyone who entered.  We got a tremendous response from our readers for the giveaway, so we’ll definitely run another one soon.  Anyway, without further ado: congratulations to our winner: Michael Burstein!

Now, on to volume 5 of Manhunter.  The main story arc in this volume involves a multi-national pharmaceutical/biotech/medical device company, Vesetech, with a plant in El Paso, Texas.  Many of the workers at the plant are Mexican women who live in Ciudad Juárez across the border.  While investigating the disappearances of a large number of women in the area, Kate Spencer discovers that Vesetech was kidnapping the women and using them in unethical medical experiments.  After busting up the supervillain-led research team, Spencer announces at a press conference that she is leading a class action lawsuit against the company on behalf of the former employees.  This leads to a few questions.

I. Federal Labor Laws

Kate says that Vesetech was paying the women ‘pennies,’ suggesting a violation of minimum wage laws.  For violations of the federal minimum wage (the same as the minimum wage in Texas), employees can sue for both back wages and an equal amount as liquidated damages under 29 U.S.C. 216(b).  However, violations of the federal minimum wage law are frequently enforced by the Department of Labor’s Wage and Hour division, which is empowered to sue on the employee’s behalf.  If the Department of Labor steps in then that terminates the employee’s right to sue on their own behalf.  So there’s a very good chance that part of the suit could be dismissed.  But there would still be the injuries suffered by the women who were experimented on.

II. Class Actions and Federal Jurisdiction

Kate announces that she will represent the women in a class action lawsuit, but things aren’t that simple.  A class must be certified by a judge, and the plaintiffs in this case may not meet the requirements.  For simplicity we’ll assume that the case would be brought in federal court.  Bringing a case in federal court requires (among other things) that the court have subject matter jurisdiction.  That is, it must be the kind of case that the federal courts can address, since the federal courts are courts of limited jurisdiction.

In brief, federal courts can get subject matter jurisdiction three ways: the Arising Under clause, diversity of citizenship, and supplemental jurisdiction.  The Arising Under clause grants jurisdiction in cases involving a federal question.  Diversity of citizenship applies when no plaintiff is a citizen of the same state as any defendant and the amount in controversy is at least $75,000.  Supplemental jurisdiction allows state law issues to tag along when they are related to another claim or controversy that the court had jurisdiction over.

In this case, federal jurisdiction seems likely since the plaintiffs are all Mexican citizens while the defendant is a US corporation, giving a federal court jurisdiction under diversity of citizenship. (legal pedant note: it is broadly assumed that this is so, but the Supreme Court has indicated in dictum that a foreign plaintiff may not claim federal jurisdiction under diversity of citizenship.  Verlinden BV v. Central Bank of Nigeria, 461 U.S. 480, 492 (1983).  It is not completely clear what the answer is in a case like this, with foreign plaintiffs and a US defendant.)

There may also be federal question jurisdiction (e.g. if the women sue for wages and the Department of Labor doesn’t step in).

In any case, federal class actions are governed by Federal Rule of Civil Procedure 23.  There are several requirements, but the biggest issue here is probably commonality: are there “questions of law or fact common to the class?”  The problem is that there are at least two groups of plaintiffs: women who were paid below minimum wage and the women who were experimented on (or at least their estates).  Admittedly, members of the latter group may also be members of the former group, but the questions of law and fact are very different between the two groups.  It is possible that a federal court would consolidate the cases, but they would probably be brought as two separate suits.

But even that may not be enough.  Unless the women were subjected to at least broadly similar mistreatment at the hands of Vesetech’s scientists then a class action may not be the best way to resolve their claims.  A court could decide that the women’s injuries were too unique to be treated as a class.

III. The Measure of Damages

During the press conference Kate explains that data gleaned from Vesetech’s human experiments may have been used to develop a range of highly profitable and widely-used products.  Kate says that this is “fruit of the poisonous tree” (a rather terrible mis-use of a legal phrase).  Anyway, it is implied that this has something to do with the women’s case.  Ordinarily the women’s damages would be what it took to compensate them (or their estates) for their injuries, plus likely punitive damages of up to 10 times the compensatory damages.  See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that Due Process generally requires punitive damages be less than 10 times the compensatory damages).  The women would ordinarily not be entitled to any share of the ill-gotten gains derived from their suffering.

However, the equitable remedy of restitution may allow the women to recover some of those ill-gotten gains.  But as an equitable remedy restitution is discretionary, so a court may or may not impose it.

IV. Tort Claimants and Bankruptcy

The real bad news is that Vesetech is almost certainly going to be bankrupt in short order: all of its facilities around the world were raided, virtually every aspect of its business is suspect, and it is looking at massive criminal penalties.  What’s more, tort claims are general unsecured claims, aka “the back of the line” in bankruptcy.  So even if the women’s case is successful, they may ultimately receive nothing as secured creditors and the government take everything the corporation owns in liquidation.  Sad, but that’s the law for you.

That’s it for our series on this run of Manhunter.  Look for our next series on Batman: No Man’s Land!

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Posted in civil procedure, labor law, torts

Daredevil

Posted on July 28, 2011 | 13 comments

As a movie, Daredevil was alright as a movie, but man were there ever some serious legal errors and oddities.  We watched the Director’s Cut, which includes a major subplot left out of the theatrical version.  Like all of our reviews, this one is full of spoilers.

Continue reading →

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Posted in criminal law, criminal procedure, legal ethics, movies

Captain America

Posted on July 25, 2011 | 17 comments

Captain America was, quality-wise, pretty much the polar opposite of the last movie we reviewed.  There are two legal issues we’d like to touch on, both of which come up early in the movie.  Still, these are technically spoilers.

Continue reading →

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Posted in criminal law, movies

Ghost Rider, the Devil, and Bearer Paper

Posted on July 20, 2011 | 39 comments

The 2007 Ghost Rider movie was neither a particularly good movie nor a particularly good source of legal themes, but there was one interesting observation we seized on.  Spoilers ahead, though I doubt many tears will be shed over spoiling Ghost Rider.

I. The Setup

In the movie, Mephisto (one of many devils in the Marvel universe) has a habit of making Faustian bargains.  When it comes time to collect he sends his henchman, the Ghost Rider, with whom he has also made a pact, albeit one he has to enforce himself, of course.  The precise terms of these contracts vary but the practical upshot is always the same: the devil gets your soul, from which he can derive power.  The movie is centered around the fate of a particularly valuable contract for the souls of an entire town, one thousand in all, which Ghost Rider’s predecessor had hidden rather than give up to Mephisto.

So far this is fairly standard stuff.  The twist comes from the fact that there are warring factions with Marvel’s demonic community, and Mephisto’s son Blackheart wants the contract for himself.  In fact, he manages not only to get the contract but to collect the souls bound by it.  And this brings us to the interesting part.  If the contract was with Mephisto, how could just any demon who got ahold of it cash in on the deal?  The inescapable conclusion is that demonic contracts must be redeemable by the bearer.

II. Bearer Paper

For an attorney, the idea that jumps readily to mind is “bearer paper.”  Bearer paper is a kind of negotiable instrument, which you are probably familiar with in the form of checks and money orders.  You’re probably also familiar with bearer paper: you create it any time you make a check out to “cash,” for example.  As the name suggests, bearer paper is payable to the person bearing (i.e. physically holding) the bill, note, check, etc.  This is convenient, but also dangerous, since it becomes much easier for a thief (or an upstart young demon) to cash it.

So could Mephisto’s contract have been bearer paper under US law?  The first thing to consider is whether the contract could have been a negotiable instrument at all.  As defined in the Uniform Commercial Code, Article 3 (which has been adopted by most states):

“negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.

That’s a lot of text, but the basic rule is that a negotiable instrument needs 1) a fixed amount of money, possibly with interest; 2) a payee (i.e. the person getting paid, which can be the bearer); 3) a payable date, which can be “on demand” (i.e. whenever the payee wants) or a specific date; and 4) it generally can’t have any other conditions attached to it (e.g. no fair saying “Pay to the order of Bob if he paints my house.”).

And there’s the rub.  Mephisto’s contract is for souls, not money, and it plainly has some additional conditions on it (e.g. whatever it was Mephisto did for the people of San Venganza in exchange for their souls).  Of course, this is according to modern US law.  The contract was drawn up in the 19th Century.  Can we do better under the law of the time?

III. The Uniform Negotiable Instruments Law of 1896

The Uniform Negotiable Instruments Law was the predecessor to the Uniform Commercial Code, and like the UCC it was broadly adopted.  The UNIL or something like it was probably the law of the land at the time the contract was formed.  As luck would have it, its definition of a negotiable instrument is a bit looser than the UCC’s:

An instrument to be negotiable must conform to the following requirements:
1. It must be in writing and signed by the maker or drawer.
2. Must contain an unconditional promise or order to pay a sum certain in money.
3. Must be payable on demand, or at a fixed or determinable future time.
4. Must be payable to order or to bearer.
5. Where the instrument is addressed to a drawee he must be named or otherwise indicated therein with reasonable certainty.

This gets us closer.  The UNIL allows a negotiable instrument to be made for a promise rather than only money.  But that promise has to be unconditional, which means it can’t be something like “I promise to give the bearer of this contract my soul if Mephisto grants me three wishes.”  That pretty well spells the end of the bearer paper idea.  Presumably the infernal legal system is more flexible in this regard, although one wonders why Mephisto would be so foolish as to draw up such a contract in the first place.  Somebody ought to get that guy a lawyer.  One presumes he has ready access to plenty of them.

IV. Sidenote: The 13th Amendment

The 13th Amendment prohibits slavery and involuntary servitude.  However, it’s questionable whether Mephisto’s contract could be voided on that basis, since the damned are dead and have no rights.  Further, US courts have been reluctant to exert jurisdiction over the Devil.  See United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971).  Anyone considering entering into a pact with the Devil should definitely bear in mind that it may be difficult to obtain relief in court should the Devil prove less than trustworthy.

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Posted in contracts, movies

Manhunter, Volume 4, Part 3

Posted on July 14, 2011 | 5 comments

We’ve made it to the last part of our series on Manhunter volume 4. This is also the penultimate entry in our larger series on Manhunter, since volume 5 is pretty light on legal issues. To celebrate wrapping up this series, we’re giving away a complete set of volumes 1-5 of the Marc Andreyko run of Manhunter. To enter, simply send an email with “Law and the Multiverse Manhunter Giveaway” in the subject to james@lawandthemultiverse.com.  Please note that you must be 13 or older to enter.  We’ll choose a winner at random from among all of the entries we receive and announce it with the final Manhunter post.  (In the future we’ll probably give away books before we start writing about them, but we only had the idea for this recently.)

Now on to today’s post.  The remaining issues to talk about in volume 4 are some evidentiary problems and the “elephant in the room” jurisdictional issue.  Spoilers ahead!

I. Evidence, Grand Jury Procedure, and More Legal Ethics

After Spencer obtains Superman’s agreement to testify and to allow the use of the videotape proving that Superman was acting under Lord’s psychic control, she arranges a meeting at the judge’s home with the judge, the prosecutor, Superman, and herself.  There she shows the judge and prosecutor the videotape.  As we’ve discussed, there would ordinarily be no judge involved at the grand jury stage of things.  Curiously, the comic gets several things right at this point that almost make up for things it got egregiously wrong earlier.

First, the judge correctly remarks that she can’t speak to Spencer without the prosecutor present.  California Rule of Professional Conduct 5-300(B) states that attorneys cannot communicate with a judge regarding the merits of a case except

(1) In open court; or
(2) With the consent of all other counsel in such matter; or
(3) In the presence of all other counsel in such matter; or
(4) In writing with a copy thereof furnished to such other counsel; or
(5) In ex parte matters.

So Spencer was right (so far as it goes) to call the prosecutor into the meeting.

Second, the comic correctly shows that both the judge and the prosecutor are not at court while the grand jury is deliberating.  As mentioned in the last post in this series, no one except the jurors and any necessary interpreters may be present for federal grand jury deliberations.

Third, the judge correctly tells Spencer that the evidence can only be offered at trial.  The prosecutor can choose what evidence to present to the grand jury, and once the grand jury has begun deliberating it is too late for the prosecutor to offer any new evidence.  Of course, it’s highly unlikely that the prosecutor would show such evidence to the grand jury anyway.  Although prosecutors may have an ethical duty to give the defendant any evidence tending to prove the defendant’s innocence (ABA Model Rule 3.8(d)), it’s up the defendant to actually use that evidence.  The prosecutor has no obligation to do the defense’s job for it.

Although the comic gets a lot correct there, there’s still a significant error here.  Specifically, a judge would look at the video or listen to what Superman had to say outside of the proper context (i.e. a trial or at least a pre-trial hearing).  For one thing, Superman wasn’t under oath, and for another the prosecutor wasn’t given an appropriate opportunity to contest the admissibility of the video (he made a lame show of opposition but the judge told him to shut up).  So we’ll have to give this part a mixed review: kudos for getting some of the ethical and procedural issues right but minus points for trying to present evidence outside of court.

II. Jurisdiction

We saved this issue for last because it actually makes almost everything else in this case moot: the United States has no jurisdiction over Maxwell Lord’s murder because Wonder Woman killed Lord at Checkmate’s headquarters in Switzerland, which is outside both the US’s territorial boundaries and the federal government’s special maritime and territorial jurisdiction.  The fact that Lord is a US citizen doesn’t change the result.

Of course, Wonder Woman could have been charged and tried in Switzerland.   It’s not entirely clear where Checkmate headquarters is located within Switzerland, so we’re not sure which canton’s laws would apply.  In some cantons, Spencer could represent Wonder Woman but it would require the permission of the local authorities and the assistance of a local attorney.  See, e.g., Article 23 of the Geneva Loi sur la profession d’avocat.  In cantons that allow non-lawyers to represent people in court she could certainly represent her.  See, e.g., §§ 2-3 of the Basel Advokaturgesetz.  But in other cantons there doesn’t seem to be any provision for a foreign, non-EU attorney to represent a client in court.  See, e.g., the Bern Kantonales Anwaltsgesetz.

However, even if she could represent Wonder Woman we don’t think it would be a good idea.  Spencer doesn’t appear to speak any of Switzerland’s official languages, and she presumably knows little or nothing about Swiss law, which is a civil law system and thus fundamentally different from US law.  Even if Wonder Woman requested her services, Spencer would have to consider whether she could competently represent Wonder Woman as required by the California Rules of Professional Conduct.  Those rules still apply even if Spencer is outside of the country.  Rule 1-100(D)(1).

Since we know about as much about Swiss law as Spencer, we will not speculate as to what the result might have been had Wonder Woman been tried in Switzerland.  If there are any Swiss lawyers in the audience we’d love to hear from you in the comments.

That’s all for this issue.  Be sure to enter the drawing!

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Posted in criminal law, criminal procedure, evidence, legal ethics

Manhunter, Volume 4 Part 2

Posted on July 8, 2011 | 11 comments

Today we’re continuing our analysis of Mahunter vol. 4.  In Part 1 we discussed conflicts of interest, fee arrangements, and client gifts.  For Part 2 we have more legal ethics issues and a note about grand juries.  These are some of the same ethical issues we discussed during our recent legal ethics CLE program.  Spoilers abound.

I. Trial Decorum and Grand Juries

During Wonder Woman’s grand jury hearing, Kate Spencer objects to a statement made by the prosecutor.  After being admonished by the judge, Spencer uses a feigned apology to plant seeds of doubt in the minds of the members of the grand jury (“I apologize your honor.  It was just reflex.  I’d almost forgotten how different grand juries were from real ones…how low the burden of proof, how geared in favor of the prosecution they are…”).  After a remark from the prosecutor the judge threatens them both with contempt.  Spencer admits to Wonder Woman that the disruption was intentionally calculated to anger the judge, causing her to forget to tell the jury to disregard Spencer’s statement.

There are many problems with this scene.  First, the potential defendant and his or her attorney are not present at a grand jury hearing, except that the potential defendant could be called as a witness.  The comic book sort-of acknowledges this with a line by the judge saying that an exception was allowed for this unique case.  The problem with this explanation is that there isn’t a judge at a grand jury hearing, either.  Grand jury hearings are led by the district attorney, who acts as both legal advisor to the grand jury and as the prosecutor.

Federal Rule of Criminal Procedure 6(d) explicitly spells out who may attend a grand jury hearing: “The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.  No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting.”  There is no room for a judge to make an exception.  Heck, there’s no room for a judge at all.  Even the witnesses are only allowed in one at a time (hence “the witness being questioned”).

This may seem unfair, but remember that a grand jury is convened in order to indict someone; the adversarial process has not started yet.  Thus, there is only a potential defendant, who is no different from any other witness.  However, after an indictment has been returned the defendant may challenge the composition of the grand jury (e.g. on grounds of bias).  28 USC 1867.  But this is after the fact, not during the hearing.

Of course, Spencer’s claim that she’d “almost forgotten” how grand juries work is ridiculous.  Not only is it basic criminal procedure, Spencer was a federal prosecutor herself for some time before moving to defense and would have conducted many grand jury hearings.  So her claim is either a lie or an admission of incompetence.  That’s the kind of nonsense that judges do not suffer gladly.

Second, Spencer’s outburst was also an unethical intentional disruption of the hearing.  ABA Model Rule 3.5(d) states “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”  (And in case you’re wondering, the comments to Model Rule 3.5(d) together with Rule 1.0(m) show that a grand jury hearing is a ‘tribunal’ for purposes of the rule, judge or no.)

(On a more minor point, the comic portrays the wrong number of grand jurors.  A federal grand jury “must have 16 to 23 members.”  Fed. R. Crim. P. 6(a)(1).  The comic shows a typical jury of 12.)

II. Allocation of Authority Between Lawyer and Client

Spencer discovers that Wonder Woman killed Maxwell Lord because Lord was psychically controlling Superman, making him believe that his friends and allies were actually villains.  In fact, Spencer obtains video evidence proving as much.  However, Wonder Woman forbids Spencer to use that evidence out of concern for Superman’s reputation as a force for good.  Spencer agrees to the constraint even though it will make her job much harder.

As it happens that’s exactly right.  ABA Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  Rule 1.4(a)(2) essentially reiterates the obligation to consult with the client: “A lawyer shall … reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Furthermore, the comments to Rule 1.2(a) specify that “lawyers usually defer to the client regarding … concern for third persons who might be adversely affected.”

So here Spencer is definitely doing the right thing.  If for some reason she felt that she couldn’t represent Wonder Woman under those constrains the solution would be to withdraw as her attorney.

III. Media Rights

In order to work around Wonder Woman’s prohibition against using the video as evidence, Spencer decides to contact Superman, apparently on the assumption that if he agrees to testify then Wonder Woman will be okay with it.  Since Spencer doesn’t exactly have Superman’s home phone number she contacts Lois Lane and asks her to relay the message.  The plan works but “[Lois] almost made me sign over exclusive media rights to ‘my story’ in this case.”

Spencer was right not to sign any such deal.  ABA Model Rule 1.8(d) says: “Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.”  The policy here is that lawyers with media deals will feel tempted to sensationalize or play up the entertainment value of the case to the client’s detriment.

Strictly speaking, this Rule is about agreements between the lawyer and the client regarding the client’s media rights.  However, Spencer’s duty of confidentiality means that she would almost certainly need Wonder Woman’s permission in order to sign media rights over to Lois Lane.  The result is the same.

Further, this also raises issues of inappropriate trial publicity, at least if the story was published while the case was ongoing.

IV. Conclusion

Today was a mixed bag for Spencer.  She got some things right and some things wrong.  Unfortunately, the writers sort of painted themselves into a corner by framing the story around the grand jury hearing instead of a trial.  At that point they had little choice but to contrive a way to put Spencer and Wonder Woman in the court room.  We guess they didn’t want Wonder Woman to even be indicted, but that led to some compromises.  We say stick to trials.  They’re more dynamic, and most people have at least a general sense of how they work.

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Posted in criminal procedure, legal ethics

Law and the Multiverse Holiday Special – Fourth of July Edition

Posted on July 4, 2011 | 1 comment

Today is the Fourth of July, or Independence Day in the US (our non-US readers will have to indulge us on this one).  Traditionally this is celebrated with fireworks, both amateur and professional.  Fireworks are regulated at the local, state, and federal levels, but today we’re interested in the federal regulations.  Specifically: if superpowers were fireworks, how might they be classified?

I. The Classification System

In the past the US used a system that divided explosives into three classes: A, B, and C.  Essentially, Class A included high explosives and bulk packages of low explosives.  Class B included professional fireworks.  Class C included common fireworks.  Most Class and A and B explosives required a Bureau of Alcohol Tobacco and Firearms license, whereas Class C explosives did not.

Now the US uses the United Nations explosives shipping classification system.  The BATF regulations generally refer to the UN numbers (e.g. UN0333 is fireworks class 1.1G) rather than the class, and the Department of Transportation regulations may refer to the class.  The US classifications and regulations are described in 27 CFR 555.11, 49 CFR 172.101 and 49 CFR 173.52.  For example, “consumer fireworks” are defined as

Any small firework device designed to produce visible effects by combustion and which must comply with the construction, chemical composition, and labeling regulations of the U.S. Consumer Product Safety Commission … . Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 mg or less of explosive materials, and aerial devices containing 130 mg or less of explosive materials. Consumer fireworks are classified as fireworks UN0336, and UN0337 … at 49 CFR 172.101. This term does not include fused setpieces containing components which together exceed 50 mg of salute powder.

UN0336 and 0337 are classes 1.4G and 1.4S, respectively.

II. Superhero Fireworks

So supposing a superhero wanted to use his or her powers to put on a show, would they need a permit?  And if so, what kind?  (Note that we’re ignoring the fact that the definitions generally wouldn’t apply to people, e.g. a superhero is not a “small fireworks device”).  Here we’ll discuss Jubilee, Cannonball, the Human Torch, and the Green Arrow, who uses explosive devices for some of his arrows.

Although she no longer possesses this power, Jubilee’s iconic original power was the creation and control of “energy plasmoids,” which look a lot like fireworks.  The power level ranged from the purely visual to dangerous explosions.  As such, Jubilee’s power could fall anywhere from a sparkler (UN0337 / 1.4G) to a large display firework (UN0335 / 1.3G) or bulk salute (UN0333 / 1.1G).  The largest commercial fireworks contain about 1kg of flash powder, approximately equal to .6kg of TNT, which sounds about right for the upper limits of Jubilee’s power.  Thus, Jubilee might or might not need a license in order to use her powers for a fireworks show.

Cannonball’s controlled explosion power, by comparison, definitely starts out at the bulk salute level.  Curiously, there is no explicit upper end to the amount of explosive material that can be used in a display firework, and the explosives may function by conflagration (i.e. simple burning), deflagration (i.e. a subsonic low explosive), or detonation (i.e. a supersonic high explosive).  So despite the fact that Cannonball’s explosions are extremely powerful, they might still be classified as a display firework.

The Human Torch is a different case altogether because he does not cause any explosions but rather simply burns.  Technically this makes him a consumer firework: he produces an aerial visual effect by combustion but produces no explosions.  Thus, no license required.

Finally, the Green Arrow is unique in this group for using conventional explosive devices rather than superpowers.  Because of this he would follow the normal regulations: strapping a sparkler to an arrow wouldn’t require a license, but using a time-bomb arrow as a makeshift firework shell definitely would.

That’s it for today.  Have a happy (and safe!) Fourth of July!

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