Author Archives: James Daily

Supervillain Real Estate

Posted on December 8, 2010 | 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

Superpowers as Personal Property

Posted on December 6, 2010 | 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

Hearsay and Professor X

Posted on December 3, 2010 | 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 | 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

Is Batman a State Actor?

Posted on November 30, 2010 | 87 comments

Constitutional limitations on things like censorship, discrimination, and search and seizure do not apply to private individuals but rather to the federal government and, in some cases, to the states.  (The Thirteenth Amendment is a rare exception that applies to individuals).  As a result, evidence that a superhero obtains by breaking into a villain’s headquarters is admissible even though it was obtained illegally.  See, Burdeau v. McDowell, 256 U.S. 465 (1921).  And since it doesn’t invoke the fruit of the poisonous tree doctrine, any additional evidence obtained via the original evidence would also be admissible.

But what about superheroes like Batman who work in close cooperation with the police?  Could they fairly be described as state actors, thus triggering a whole spate of Constitutional protections?  I think the answer may be yes.

In Lugar v. Edmondson Oil Co. the Supreme Court gave a two-part test for whether the conduct of a private party could be fairly attributable to a state, thus implying state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible….Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

In Batman’s case, Commissioner Gordon is certainly a person for whom the State is responsible, and Batman often acts together with Gordon and obtains significant aid from Gordon in the form of information and evidence.  Batman’s conduct is also otherwise chargeable to the State because the Gotham Police Department has worked with Batman on numerous occasions (and thus knows his methods) and operates the Bat Signal, expressly invoking Batman’s assistance in a traditionally public function.  This suggests state action under the public function theory: “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”  Evans v. Newton, 382 U.S. 296, 299 (1966).

In the real world, this would cause significant problems for Batman and Gotham.  Batman’s rough and tumble style would lead to a rash of Section 1983 claims for damages and probably also for an injunction against Batman’s future cooperation in police investigations.  As discussed earlier, most evidence that Batman collects would be inadmissible, and police use of that evidence might bar the use of additional evidence collected during a subsequent police investigation.

Now, clearly none of this is the case, so there are three possibilities.  Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

87 Comments

Posted in Batman, civil rights, criminal procedure, superheroes

Mutants and Anti-Discrimination Laws, Part Three

Posted on November 30, 2010 | 14 comments

We’ve previously discussed two potential approaches for protecting mutants and other innately superpowered beings from discrimination.  But legal protection can be a double-edged sword for organizations that cater to mutants exclusively.  If organizations couldn’t discriminate on the basis of mutant status, would the Xavier Institute be forced to take in non-mutants?  Would S.H.I.E.L.D. be forced to hire regular people?  Probably not, but they might have to do a little restructuring to maintain their exclusivity.

(Before we get into the details, I realize the Xavier Institute no longer exists as such, but let’s assume the mutant civil rights campaign was successful pre-“Messiah Complex.”)

If the Xavier Institute is a private school that takes no public funding, then it has more leeway to discriminate, albeit with potential repercussions such as loss of its tax exempt status (assuming that the Institute is organized as a non-profit in the first place).  See, Bob Jones Univ. v. United States, 461 U.S. 574 (1983).  If the Institute takes public funding, however, then it will generally be required not to discriminate:

The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. but neither can it call on the Constitution for material aid from the State. Norwood v. Harrison, 413 U.S. 455, 469 (1973).

It could be argued that mutant status is related to individual merit, and that the special curriculum of the Xavier Institute would be of little use to a non-mutant student, but that argument cuts both ways.  If it is permissible for the Xavier Institute to discriminate in favor of mutants because it is a school for special students, then it would also be permissible for a regular school to discriminate against mutants because it is a school for typical students.

No, the most likely result is that the Xavier Institute would have to rely on private funding or open its doors to non-mutant children.  My guess is that, given society’s attitude towards mutants, few parents would send their non-mutant children there, especially since much of the curriculum would be of no use to them (e.g. Northstar’s flying class) and the super-genius mutants probably wreck the grading curve for the normal classes.

S.H.I.E.L.D. is a different story altogether.  Unlike most superhero groups, S.H.I.E.L.D. is a part of the U.S. government.  Groups like the X-Men and the JLA are presumably private organizations that do not even employ their members, so they are free to discriminate as they wish.  Private clubs can even avoid the requirements of the ADA, which is important when designing superhero bases.  42 USC 12187.  If S.H.I.E.L.D. and the US government want to avoid a discrimination suit, it will have to take some precautions.

The Federal government has specific rules that it must follow when employing people.  These rules are part of the civil service or “merit system.”  The first principle is:

Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 USC 2301(b)(1).

As you can see, S.H.I.E.L.D. has room to prefer those with superpowers where such powers are relevant to the job (i.e. a bona fide occupational qualification).  The problem is that superhuman abilities are not actually a requirement of being an agent of S.H.I.E.L.D.  Numerous S.H.I.E.L.D. agents, although plainly very skilled, are not superhuman, at least not inherently (e.g., Nick Fury, Tony Stark, Clay Quartermain).  This may make it difficult for S.H.I.E.L.D. to preferentially hire people with superpowers except when a position requires a particular ability (e.g. the Psi-Division).

There is an outlet, though.  Not all civil service positions are covered by the merit system: “‘covered position’…does not include any position which is…excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.” 5 USC 2302(a)(2)(B).  As long as the President signs off on a given position before a new agent is brought on board, S.H.I.E.L.D. is free to hire whomever it wishes.

14 Comments

Posted in civil rights

Law and the Zombie Apocalypse

Posted on November 28, 2010 | 25 comments

Characters in post-apocalyptic scenarios often resort to drastic measures to survive, but are they legally justified?  While the law recognizes a defense of necessity, the defense has limits.  In particular, murder (perhaps in the form of cannibalism) cannot be justified by necessity.

In The Walking Dead characters engage in cannibalism to survive.  In the lawless environment of the comics & TV series, this seems justified, but what if law and order were restored?  There is no statute of limitations for murder, and as it turns out, even the necessity of survival does not justify cannibalism.  Note that I’m talking about cannibalism that involves killing a person, not eating someone who died from other causes.

In the law-school-famous* case of R. v Dudley and Stephens, 14 QBD 273 DC (1884), it was held that necessity is not a defense to murder.  In that case, four shipwrecked men adrift in a lifeboat eventually resorted to killing and eating the youngest and weakest of the crew.  The three remaining men were picked up, whereupon they admitted what happened.  Two were charged with and convicted of murder and sentenced to death, though the appellate judge expected mercy, and indeed they were only sentenced to six months imprisonment.  The third survivor, who had been less keen on the scheme, was not charged so that he could be called as a witness, though he had also eaten the victim.

The shipwreck case is analogous to a post-apocalyptic situation in many ways.  The legal system is effectively suspended, the chances of survival are remote, and cannibalism may be a literal necessity.  But while the defense of necessity may excuse trespassing, looting, and a multitude of other sins, murder remains beyond the pale.

* Law school famous is like internet famous but for law students and lawyers.

25 Comments

Posted in criminal law, zombies

Mutants and Anti-Discrimination Laws, Part Two

Posted on November 19, 2010 | 13 comments

In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was.  In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”

Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010).  An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.”  130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.

But the courts do not recognize new substantive due process rights lightly.  “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.”  Id.  However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.

So the questions are raised: are mutants a discrete and insular minority?  do they face systematic barriers in the political system?  do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection?  I think the answer to all of these questions is yes.  Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have.  Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state.  In at least one case it has even lead to the wholesale enslavement of mutants.  The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause.  Did any X-Men series ever address a court challenge to anti-mutant laws?  For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.

13 Comments

Posted in civil rights, X-Men

Mutants and Anti-Discrimination Laws, Part One

Posted on November 19, 2010 | 6 comments

Discrimination against superheroes, particularly mutants, is a perennial problem in the Marvel universe, but there’s an argument to be made that the existing constitutional anti-discrimination framework would protect mutants.  First we consider the Equal Protection Clause of the 14th Amendment.  In a follow-up post we’ll discuss substantive due process.

The Equal Protection Clause of the 14th Amendment states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”  The Supreme Court has held that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest….The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Court has also held that other classifications (sex and legitimacy of birth) are subject to a heightened standard called intermediate scrutiny.  “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women….Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.”  473 U.S. at 440-41 (internal citations and quotations omitted).

“So far, so good,” you may be thinking.  After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority.  Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as mutants are generally equal to or superior to typical humans in every way.

Alas it is not that easy.  First, unlike the problems of discrimination on the basis of race, citizenship, national origin, sex, and legitimacy, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old.  A court may be unwilling to conclude that it is a problem unlikely to be rectified by legislative means without giving the issue more time to develop.  Second, from a legal perspective mutation would indeed bear a relation to an individual’s ability to participate in and contribute to society.  For example, one could easily imagine jobs that particular mutants could do much better than a typical human.   However, let’s continue with the Cleburne case for an example of the Supreme Court declining heightened protection to a class and see if mutation fits the mold.

The Cleburne case was about discrimination against people with mental disabilities (basically the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled).  The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed.  First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary.  Id. at 442. Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice.  Id. at 443. Third, the existence of positive legislation indicated that the mentally disabled were not politically powerless. Id. at 445. Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id. at 445-46.

So we can see that while some of this decision cuts in favor of mutants (the second and third points are lacking in the case of mutants), the first and fourth points cut against them.  Mutation is indeed a highly variable condition, and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Id. at 443.  And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne.  Given the Court’s current reluctance to embrace homosexuality as a suspect class, it’s questionable whether it would do so for mutants.  In the next post we’ll consider whether substantive due process offers a better argument.

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Posted in civil rights, X-Men

The Multiverse and Res Judicata

Posted on November 16, 2010 | 34 comments

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

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

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

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

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

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

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

34 Comments

Posted in civil procedure, criminal procedure, Lex Luthor, supervillains