Well it’s no Iron Man, but neither is it The Fantastic Four. It’s a serviceable summer flick, in other words.
It also happens to be (loosely) based on the 2006 graphic novel by Scott Michael Rosenberg, Fred Van Lente and Andrew Foley.
Anyway, there are a few legal issues to be discussed here, so take a look inside. Continue reading
Posted in constitutional law, criminal procedure, movies
By this point in the series, it’s pretty clear that the writers are deliberately trying to play with the “legal” consequences of the premise. And you know what? Good for them. Of course, it would have been better if they’d asked someone who knew something about the legal system before they went with it, because things aren’t getting any better on that front. Continue reading
Posted in civil rights, constitutional law, corporations, television
The plot thickens! Or it tries to anyway. Turns out radical improbability does not work as a thickening agent unless you’re Douglas Adams, so this plot is still pretty soupy. Because, see, the legal side of things isn’t the only bit that’s getting increasingly implausible. Our heroes’ current theory is that the whole thing is an inside job so that… big pharma can make more money? Really? I mean, we’re completely okay with corporate executives as villains, but corporations absolutely need stability and order to survive—they’re legal fictions, after all—so the suggestion that a corporation would instigate a potentially society-ending cataclysm beggars belief. If this is what Davies has left in terms of plots, it’s a good thing for Doctor Who that he left.
Anyway, on to the law.
Posted in administrative law, television, torts
The fourth season of True Blood started up a few weeks ago, so it seems a fitting time to discuss the various legal implications of that setting. The series is based on The Southern Vampire Mysteries novels by Charlaine Harris, but we’re going to focus on the TV show because neither of us have actually read the novels (yet!). There’s also a comic book series.
For those who don’t know, the premise of True Blood and the novels upon which it is based is that vampires, along with various other supernatural beings like dryads, werewolves, fairies, etc., are real and have been around forever. These vampires are a lot more like the good old bloody vampires we find in Dracula than the sparkly, limp-wristed pretty-boys or hideous, predatory monsters of recent fiction. They’re essentially dead humans animated by magic. They’re immortal, possessed of superhuman abilities—strength, speed, flight, a form of hypnosis—which increase as they age. They’re immune to most diseases and can heal rapidly, but they burn in sunlight and are poisoned and weakened by silver. And their blood acts as a powerful, unpredictable, and highly addictive drug as well as supernatural healing agent when consumed by normal humans. They’ve been living in a sort of shadow society for centuries, always on the borders and dark places of whatever culture they happen to occupy.
The conceit which starts the action of the series is that in the late 1990s, scientists in Japan finally figured out how to synthesize real human blood in the laboratory. Exactly how this is done is not made clear, and thus far isn’t important. What is important is that for the first time, vampires can exist without feeding on the blood of living humans. A faction within the vampire community took the opportunity to make vampires known to the world, ending the masquerade and becoming public members of human society. “Coming out of the coffin,” as it were; the series contain fairly obvious civil rights metaphors, particularly gay rights.
Anyway, as one might imagine, this leads to a right nasty bunch of legal snarls. A lot of these we’ve already talked about in other contexts, which will be helpful, but some of the issues are new. This may well turn into a series of posts, and we may start doing analysis of episodes as they air, as we’re doing with Torchwood: Miracle Day.
I. Immortality
This would be the obvious one. Immortality was one of the first things we discussed, but that was mostly in the context of being immortal while maintaining the masquerade, i.e. not letting anyone know that you’re immortal. So the vampire community would have needed to deal with those issues before the start of the series, but not anymore. Being immortal is not illegal as such. Indeed, making it illegal might well be unconstitutional. In Robinson v. California, 370 U.S. 660 (1962) the Supreme Court that it was unconstitutional to punish someone for being possessed of a certain biological condition, in this case addiction to narcotics. The Court reasoned that while using illegal narcotics might well be illegal, being addicted to them could not be, because that could be involuntary. Similarly, being made into a vampire is frequently an involuntary transaction (and apparently incurable), so punishing people for being vampires would seem to be problematic. Of course, there’s also the whole issue of whether or not vampires count as people, but we’ll get to that in a bit.
This particular implementation of immortality has some weird results. For example, Bill Compton winds up reacquiring the house his family had owned in the 1860s. It had been abandoned when he died, which is plausible given the setting in rural Louisiana, and when he reappeared to claim title, there wasn’t anyone to dispute his claim. We discussed what might have happened if there had been owners in the mean time back in December, and that analysis seems to work here.
II. Vampire Rights
A big question in the series has to do with the issue of vampire rights. By the time the show starts, it seems to be pretty much settled that vampires can own property, but the issue of humans marrying vampires has caused a fair amount of controversy. Truth be told, this seems to be a rather transparent and clumsy attempt to force the situation into an analogy for gay rights, because the issues actually are fairly different. First of all, the reason that people seem to be objecting to human/vampire marriage is that vampires are dead, and thus not really people. Of course, if that’s the case—and they are dead, to be sure—why can they own property? We talked about the issue of non-human intelligences starting here, and the real question here is not why vampires cannot marry, but why they can own property. If vampires are not people, or at best are ex-people, they shouldn’t have any rights at all. But if they are sufficiently human to own property, they should be sufficiently human to do anything else that a human can legally do. So there is indeed a line to be drawn here, but the place that it’s drawn doesn’t really make any sense. The issue doesn’t even really implicate gay marriage, as there are plenty of vampires who would just as soon enter into heterosexual relationships with humans and even with each other, so there’s no inherent change to the traditional definitions of marriage in view. At the beginning of season four we’re finally starting to see what looks like grassroots, community opposition to vampire-owned businesses, but that mostly seems to be based on the immorality or even amorality of vampire stereotypes (and let’s be honest, most of the vampires we’ve seen, even the nice ones, are distinctly unpleasant people) than on the fact that they’re dead and thus arguably not human.
In all fairness though, should vampires of this sort suddenly announce themselves to the world… it’s not implausible that the situation would wind up being just as irrational as the one in the stories. The marriage issue seems forced, but there would likely be a ton of conflicting and inconsistent attempts to challenge their right to become part of society premised on the fact that they’re not really human, or at least sufficiently different from baseline humans to justify treating them differently. But unless the courts pretty consistently sided against vampire rights, it would only seem to take a couple of decisions to establish that their rights are co-extensive with normal humans’.
IV. “Making,” Murder, and the Constitution
There’s one more sort of premise-level issue we’re going to look at before moving on. The question is whether turning someone into a vampire counts as murder. “Dying” is definitely part of the process: the vampire basically needs to drain them dry, have them drink the vampire’s blood, then spend the night with them underground, though exactly how this works hasn’t been shown on screen. And the result is a corpse. Vampires make no bones about the fact that they’re dead: they can’t eat, drink anything but blood, and none of their organs really seem to work. They are, for all intents and purposes, magically animated corpses. But still corpses.
So could a vampire who turns a human into a vampire be charged with murder? That’s going to depend on the means by which the victim was killed. Murder is the deliberate unlawful killing of another. If the vampire hunted the victim down, fed on him, killed him, and then turned him into a vampire, then definitely. But the crime of murder attaches with the deliberate killing, not the conversion. So if, for example, a vampire happened on a car accident, and plucked a person who would have otherwise been DOA from the wreckage and turned them into a vampire, that wouldn’t be murder. It might be assault, as if the person didn’t want to be turned into a vampire it would constitute an unwanted touching, but under the current state of the law, the conversion process alone does not seem to count as a crime in and of itself. Of course, there’s nothing to stop legislatures from passing statutes to make it illegal, and the stories seem to suggest that there would be significant public support for that kind of thing.
Then the question becomes whether that law would be constitutional. Assuming for the moment that vampires have rights like regular people, is it constitutional to pass a law which amounts to forbidding them to procreate? Such would almost certainly be unconstitutional if applied to humans as an impermissible burden on the right to privacy as currently formulated. But the vampires don’t really procreate. They take people that already exist and change them, often against the person’s will. At the very least, it would certainly be constitutional to forbid involuntary conversion. But it would arguably be a burden on the human in the transaction to forbid voluntary conversion. Of course, if vampires don’t have rights, then the whole thing is probably fair game.
III. Conclusion
Those are just some of the baseline legal issues in the premise of the series. We’ll take a look at some specific issues in later posts.
Posted in constitutional law, criminal law, property law, television
There was a lot less legal content in this episode, but there are still a few things worth talking about. The biggest is probably whether it’s even remotely plausible to cook up an arsenic-related chelation therapy with chemicals available on your standard commercial airliner. The answer is “We haven’t the foggiest.” We’re lawyers, not chemists. But if the show treats chemistry the way it’s treated the law so far, we’re doubtful. More serious spoilers follow. Continue reading
Posted in criminal law, television, torts
In the most recent She-Hulk run, we find in She-Hulk # 22 that Walters has been disbarred. We don’t find out why until # 29.
Let’s take a look at what happened. There’s spoilers here for those who care.
I. The Run Up
We learn about what went down in bits an pieces, but most of the story comes out in # 29 in the form of what amounts to a flashback. Why David et al chose to tell the story this way I’ll never know, but whatever. Walters was representing Arthur Moore, aka “Dark Art,” a one-off villain who hasn’t made any other appearances as far a I can tell. The guy had been accused of robbery and had come to Walters’ firm of Goodman, Lieber, Kurtzman, and Book (Holliway having stepped down), for defense. Unlike most other villains, Moore actually sort of picked on Walters fairly consistently for representing a villain, which was kind of weird. In any case, Walters manages to get his case dismissed because all of the evidence the prosecution had was acquired in an illegal search on a pretextual traffic stop. Evidence acquired in violation of the Fourth Amendment being inadmissible, the judge threw out the indictment. If we give the writers a pass for doing this in open court instead of with motions in limine, we’re doing okay so far.
Moore’s personal effects are then returned by the police, and Moore takes possession of them back in the firm’s offices. One of these things is some kind of mystical gem. Moore then asks whether he’s still protected by attorney-client privilege, and when Book tells him that he is, Moore uses the gem to telepathically transmit images of him doing a bunch of bad stuff to kids. She-Hulk goes berserk, punches him through a few walls, and after confronting him in the street, basically tells the entire crowd what Moore has done. On the next page, we find that she’s been disbarred and is leaving the firm.
II. Attorney-Client Privilege The Duty of Confidentiality
Attorney-client privilege is one of the most important features of legal ethics, and ethical issues aside, skilled litigation attorneys are going to be constantly on the lookout for discovery requests and lines of questioning that run up against it. The foundation of the privilege is an attorney’s duty to keep a client’s confidences. Unsurprisingly, blabbing a client’s guilt in public is nearly always a violation of that duty of confidentiality.
However, the rule is not absolute, and there are certain contexts where an attorney may reveal information delivered in confidence. One of them may actually apply here, namely N.Y. Rule of Professional Conduct 1.6(b)(1) and (2), which permit an attorney to reveal confidential information to prevent “reasonably certain death or bodily harm” and to prevent the client from committing a crime, respectively. If a client credibly says that he is going to hurt or kill someone, an attorney is not prevented from calling the cops. Depending on how one reads Moore’s revelations, it’s possible that he could have been communicating that there were still kids in danger. In which case he was basically declaring open-season on himself, at least insofar as those particular kids were concerned.
Still, that point is debatable, and if there weren’t any kids in trouble, Walters will be. The book also mentions that it’s inadvisable to attack a client. This is true. Not only is it illegal, it’s likely an ethical breach as well, since the crime in question “adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in violation of Rule N.Y. Rule 8.4(b). After all, would you trust a lawyer who punched her last client through a wall?
III. Scope of Representation
Moore hired the firm to represent him in his robbery case. The information he revealed had to do with entirely different crimes that were not the subject of that representation. Could Walters’ argue that she owed no duty of confidentiality because the information he revealed was beyond the scope of her representation?
Unfortunately for Walters, almost certainly not. First, scope of representation can only really be limited ahead of time and with the informed consent of the client. N.Y. Rule 1.2(c). Second, just before Moore did his thing, Book specifically affirmed that he was still protected by attorney-client privilege. As N.Y. Rule 1.6(a) says, confidential information specifically includes information that is:
(a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.
The fact that Moore was using that to goad She-Hulk into doing something stupid is probably not going to matter: being a fiduciary means putting the interests of the client ahead of one’s own. And being a criminal defense attorney means that sometimes you have to keep terrible secrets.
IV. Getting Disbarred
The question then becomes whether all of this was enough to get She-Hulk disbarred. That’s debatable. Disbarment is the most serious punishment in the legal ethics context. It means losing one’s ability to practice law, probably permanently, and getting disbarred in one state can serve as grounds for getting disbarred in the rest. Because it is so serious, disciplinary commissions—usually arms of state supreme courts—tend to impose lesser penalties like reprimands and temporary suspensions before they disbar someone.
Here, disbarment seems perhaps a bit much. Walters had not been up on any ethical charges to this point—as far as we know—and her breach does not actually seem to have put Moore in any legal danger. We don’t hear anything about Moore being prosecuted or otherwise getting in additional legal trouble. It seems plausible that the New York Departmental Disciplinary Committee would go for a lesser punishment. Still, it’s not impossible that disbarment could have resulted, as there is usually some discretion there, and publicly violating the duty of confidentiality is pretty serious.
Of note: in New York an attorney is automatically disbarred if he or she is convicted of a felony. N.Y. Judiciary Law § 90(4). If Walters plead guilty to a minor felony charge in regard to the incident (e.g. second degree assault), that would be sufficient to result in her disbarment. If she stayed out of trouble for seven years she could apply for reinstatement. N.Y. Judiciary Law § 90(5)(b).
V. The Set Up
Except for the fact that the whole thing was a set up. There were no kids in danger. Moore did what he did deliberately, at the behest of someone trying to destroy She-Hulk, personally and professionally. We find out that he had abducted the kids, but that they were all being kept in a cabin upstate, well cared for. He returned them once Walters’ disbarment was finalized. The DDC is not likely to look very kindly on this kind of sting job, and may well have been amenable to reversing itself should Walters have cared to make a motion. Turns out she didn’t, as she was pretty disillusioned by the whole affair, but it seems likely that Walters could have gotten her license back without the massive public relations stunt she pulls a few issues later.
VI. Conclusion
So basically, this story works. Breaching the duty of confidentiality is a violation of legal ethics, and can serve as grounds for getting disbarred. It’s unlikely, but not impossible, that the DDC would have disbarred Walters at this point, but one can argue that her status as She-Hulk makes her situation delicate enough that they may have gone straight for disbarment. And the fact that the whole thing was a set up may mean that she could have gotten her license back, but the story is pretty clear that she didn’t want to, so that’s more or less moot.
As the She-Hulk stories from # 22 on don’t involve Walters practicing law, there’s a lot less here than there is in the earlier stories. There’s probably another post or two to be had, but we’re reaching the end of the material here, at least with regard to legal ethics.
Posted in legal ethics
(Update: we have discovered a case on point for one of the issues raised in the post. Check out section II of the post for more.)
Torchwood: Miracle Day is the fourth “season” of the British sci-fi series Torchwood, itself a 2006 spin-off of the ever-popular Doctor Who revival. The basic premise is that, all of a sudden, people stop dying. This is not as much fun as it sounds.
Interestingly enough for the purposes of Law and the Multiverse, the series so far has more than its fair share of legal issues. So we’re going to take a look at each episode as it comes out. We’ll leave reviews of the episodes for others, as always, but hope to be your source for legal analysis for the series. Spoilers will follow. You have been warned. Continue reading
Posted in civil rights, constitutional law, international law
The Fourth of July weekend is a fitting time for the release of Michael Bay’s latest round of cinematic pyrotechnics, Transformers: Dark of the Moon. It’s better than the first two, though that’s not saying all that much. And like the first two, we’re not breaking any new legal ground here either. In fact, as seemingly befits a movie which is almost entirely derivative… there isn’t a whole lot to say that we haven’t covered already. But in any case, here’s a roundup. Continue reading
Posted in civil rights, insurance, movies, property law
So there’s this Green Lantern movie out. Reviews have… not been kind. There may actually be some kind of dogpile effect going on here, i.e. Green Lantern being the movie that it’s awesome to hate on. I mean, sure, it’s bad, but it’s no Rise of the Silver Surfer, which inexplicably got better reviews. Green Lantern’s CGI was admittedly pretty dumb though. Hard to argue with that.
Anyway, what about the legal aspects? Well, there are a couple. Oddly enough, most of them don’t involve much in the way of spoilers this time around. Still, we’ll keep the actual review inside, just in case. Continue reading
Posted in movies
Okay, so it’s not exactly a comic book movie, but Super 8 does come from director J.J. Abrams, and this, like most of his other work, is still in the basic genre ballpark, so what the hell.
Yes, it’s a good movie. But you can read other reviews for that stuff. Spoilers inside.
Continue reading
