Author Archives: Ryan Davidson

Superheroes and Immigration Status

Posted on December 22, 2010 | 79 comments

One of the most frequent questions this blog has generated, both in comments and in emails, is “What about Superman’s immigration status?”

This is that post.

Immigration law is a purely federal matter and is codified in Title 8 of the United States Code, particularly Chapter 12. Regulations on the subject–the practical implementation of statutes–are found in Title 8 of the Code of Federal Regulations, especially Chapter 5. There are enough different situations created by various superhero characters that we can really put these laws through their paces.

This is a subject that inherently touches on international issues, but since most of the main comic book stories are either set in the United States or completely off-planet, this post will limit itself to discussions of United States law.

The United States immigration process is really, really difficult. We’ll make reference to that chart later.

I. Superheroes Born Elsewhere but Raised in the US, e.g. Superman

8 U.S.C. § 1181 provides that with certain exceptions,

[N]o immigrant shall be admitted into the United States unless at the time of application for admission he

(1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and

(2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General

This creates immediate problems for Superman. He’s not going to have any documentation, as he never went through customs and thus never had an opportunity to acquire the appropriate documentation. The basic story is that Superman, (original name Kal-El), was born on the planet Krypton just before it was destroyed by… something. Depends who you ask. Anyway, Kal-El’s parents put him on a starship escape pod which crash landed in rural Kansas, where Jonathan Kent found him and took him home, raising him as Clark Kent, and only learning later about his super powers.

The actual history of Superman comics is of note here, as Action Comics #1 was published in 1938, when the country, still reeling from the lingering effects of the Great Depression, was smacked by the Recession of 1937. Unemployment was well north of 15%. The Dust Bowl was recent history. So the idea that a motorist in Kansas would discover an abandoned baby on the side of the road was depressingly plausible. In an age when immigration laws were far more lax than they are today, no one was going to ask any questions about the origin of such a child or his lack of a birth certificate.

Granted, the timing would mean that Kal-El would have crashed to earth sometime earlier in the twentieth century, but it seems plausible that the environment in which the comic was actually published would have a lot to do with the way original readers interpreted things.

Of course, recent rewrites do not necessarily enjoy the benefits of those earlier legal environments. Adopting a random infant is actually a lot harder to do these days, as state laws about that sort of thing create a lot of hoops for potential parents to jump through. The upshot is that some kind of documentation would be needed for an infant who basically appears out of thin air. That would require clever forgeries at the very least.

Or a retcon. In at least one version of Superman’s origin story, Jor-El did not place him in the rocket as an infant, but Kal-El was actually in a “birthing matrix” and was thus “born” on Earth, making him a natural born citizen of the United States and thus eligible to be President. Or at least that’s what the Supreme Court held in a 9-0 ruling. Depending on your views of Supreme Court jurisprudence, this may not even be the most fanciful thing they’ve ever done.

II. Adult Alien Superheroes

But this is also an issue for other characters. Kurt Wagner is a German national. Piotr Rasputin is Russian. Professor Xavier could theoretically have sponsored them as an employer under 8 U.S.C. § 1151(d), making them eligible for an employment-based immigrant visa. Take a look at the chart linked above. Persons with “extraordinary ability” are given preferential treatment in the immigration system (8 U.S.C. § 1153(b)(1)(a)) and are eligible for E1 visas. So any superhero connected to some kind of organization, public or private, e.g. the X-Men, the Avengers, the Justice League of America, etc., will probably be able to get this done pretty easily, as they’ve got an employer willing to put their extraordinary abilities to immediate use for the benefit of the country.

Still, the process is not immediate. Visas are issued on a priority basis, but getting a green card–i.e. permission to reside and work in the US permanently–can take a year or two, and actual citizenship can take up to seven years.

One final point: a lot of super characters travel really fast, and do so using their own means of transportation. Superman flies. Nightcrawler teleports. The Flash simply runs really fast, etc. Going from Metropolis to Ohio isn’t that big of a deal, as travel within the United States can be done almost entirely without government authorization, particularly if you aren’t using a commercial airline. But in addition to massive violations of airspace (there’s another post!), simply showing up in another country without going through customs is illegal. Wolverine deciding to go to Alberta to discover his origins is all well and good, but he’s going to have to cross the border somewhere (probably North Dakota), and that means either showing a passport or jumping the border. In essence, a law abiding superhero is going to need official documents, and as discussed earlier, that has its own problems.

III. Foreign Dignitaries

But what about T’Challa, Namor, or even Victor von Doom? All of these are either heads of state or at the very least official representatives of their respective governments.

Now we get into the Vienna Convention on Diplomatic Relations, which forms the basis for diplomatic immunity. But while diplomatic status does grant one certain advantages while on US soil, it does not in fact guarantee one admission to the country or provide the right to work for anyone other than one’s home country. Ejecting foreign diplomats is a serious but routine way for nations to express displeasure with other nations without committing an act of war or seriously endangering trade relations. So the fact that certain superheroes potentially have diplomatic status does not necessarily make things any easier for them. It is not entirely clear that someone eligible for diplomatic status would be eligible for the E1 visa that various characters without governmental ties would probably get. This is largely because in the real world, no one with diplomatic status seems to have tried do that, as having diplomatic status basically means one already has (or does not need) a job.

IV. Other Issues

But what about the really weird stuff? Like Thor, or the Shi’ar, or the New Gods?

Well Thor appears to have taken on the body of a citizen, which creates an interesting philosophical problem about the nature and identity of persons. This is exactly the kind of question a court is simply going to punt. It seems most likely that the court would simply grant Thor all of the legal statuses of Blake and have done with it.

Extraterrestrials are a different matter, but it would seem that there is a first-order question that needs to be asked. Actually, this question should probably be asked before any of them. Namely, “Is this character attempting to be part of the world or to blow it up?” If a character is attempting to exist in human society for one reason or another, they’ll need to deal with immigration law in some way. But if they’re, say, attempting to destroy all of reality, well, immigration status probably isn’t something they’re going to lose much sleep over. That’s obviously the extreme case, but someone intent on destroying a major city or taking over the world isn’t probably going to care much about immigration law either, nor will the legal system probably waste much time trying to nail them on something like that when there are available claims for things like attempted genocide.

It is unclear how the legal system would deal with the immigration status of extraterrestrials. Sure, the term “alien” could easily be read to include persons not from this planet in addition to persons not from this country, but practically speaking, no one is actually going to want to do that. Some other solution would almost certainly be implemented. They could simply be granted diplomatic status across the board.

V. Conclusion

Immigration creates a whole new set of problems for superhero characters, and a character that wants to stay on the right side of the law is going to need to figure out how to make this work. Fortunately, there appears to be an existing path to admittance and even citizenship for super powered characters in the form of the priority E1 visa. Other situations will probably require some degree of subterfuge if not outright forgery.

Commentary by James Daily:

An alternative approach to Superman’s status is the foundling statute, 8 USC 1401(f). “The following shall be nationals and citizens of the United States at birth…(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.”  While rarely applied in the real world, a court could apply this to Superman.

Superman certainly had unknown parentage when he was found in the US under the age of five years.  The real crux is the meaning of ‘until shown…not to have been born in the United States.’  In most (if not all) continuities, Superman’s true origin was revealed to the Kent’s and to him before he turned 21, but a court could decide that ‘shown’ means ‘legally proven.’  So long as Superman’s immigration status were not an issue before he turned 21, which seems likely, he may indeed be considered a US citizen.

79 Comments

Posted in administrative law, immigration law, superheroes, Superman

“Gadget” Superheroes and Federal Arms Control Laws

Posted on December 21, 2010 | 40 comments

At least two major superheroes, Batman and Ironman, are the alter egos of  billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?

I. Arms Revenue

Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.

That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.

In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.

Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?

The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure.  For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.

Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.

II. The United States Munition List

But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.

So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.

Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?

Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.

III. Conclusion

So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.

*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.

40 Comments

Posted in administrative law, Batman, criminal law, international law, Iron Man, superheroes

The Takeaway

Posted on December 21, 2010 | 5 comments

Co-author Ryan Davidson was featured on this morning’s edition of The Takeaway.

5 Comments

Posted in interviews and podcasts

Supervillains and Insurance: Who’s Gonna Pay for That?

Posted on December 17, 2010 | 33 comments

Breaking News! Superman is fighting an unidentified person in downtown Metropolis!

…again.

Didn’t this happen last week? And isn’t this all getting a bit expensive?

Most of the time when property is damaged, the property owner has insurance that will pay to restore their property to approximately the state it was in before the loss occurred. But when Doomsday goes on a rampage of destruction across at least three states or the Joker blows up half of downtown Gotham, insurer’s aren’t actually going to want to pay for that, and there is reason to believe that under the terms of standard insurance contracts, they wouldn’t have to. The reason has to do with the way insurance policies are written, which is a matter of contract as much at it is a matter of law.

So the focus of this post is not whether supervillains can get insurance, but whether standard insurance policies will pay for damage that they cause.

I. Insurance Policies and the DICE Method

First of all, insurance policies are only written for insurable risks. Generally speaking, an insurable risk is one where both the probability and magnitude of a particular kind of loss are measurable, where the occurrence of that loss is truly random, and where it is possible to transfer that risk to an insurer for an economically-feasible premium. A common example of an insurable risk is one’s house burning down. We know how often houses in a particular zip code burn down (this is what actuaries do for a living; some fun, huh?), we know what a particular house is worth, houses don’t burn down at any predictable frequency, and as it turns out, it’s possible to insure against the risk of fire for a premium which is both acceptable to the insured and profitable for the insurer. Flood is an example of an uninsurable risk. Floods do occur at random, and we know basically how often, but the magnitude of losses caused by flood are such that it is impossible to offer flood insurance at any price a homeowner can afford (more on this particular exposure later). Floods are considered “catastrophic” losses, because they cause both a high amount of damage to individual properties but also a high amount of damage to entire regions, making it impossible to adequately spread the cost to other property owners. The same is true of war, terrorism, civil unrest, revolution, etc., which is why all of those are considered uninsurable risks. Discharge of nuclear weapons, intentional or accidental, is also uninsurable. Uninsurable risks are generally excluded from insurance policies.*

When a loss occurs, the claims adjuster is going to walk through the DICE method: Declarations, Insuring agreement, Conditions, Exclusions. First, look to see if there is coverage for this kind of loss on the declarations page, i.e. coverage scheduled for this particular policy. Then, check the insuring agreement to see if the loss results from a covered peril. Then, check to see if there are any relevant conditions in the policy which are applicable. Finally, see if there are any relevant exclusions.

Take the Doomsday example again, and let’s assume that he has just leveled a private residence insured by ABC P&C by throwing Superman through it. ABC’s adjuster is first going to look at the declarations page for the insured’s homeowner’s policy. The house is insured for $100,000. So far so good. Then, he’s going to look at the insuring agreement to see if there is anything of interest there. This policy is a special perils form, which covers everything not specifically excluded, so again, so far so good. Then he’ll check conditions. The homeowner is current on his premium, gave timely notice of the claim, and is cooperating with the adjuster, so again, probably okay there.

But what’s this? Terrorism is excluded? And you didn’t buy the terrorism endorsement? Hmm. That’s going to be a problem.

It’s going to be pretty easy to argue that Doomsday is a terrorist, but even if he isn’t, it isn’t going to be difficult to fit this into either the war or civil unrest exclusions, both of which are part of every insurance policy. Any insurance defense attorney worth his salt would certainly make that argument, and it’s hard to see why it wouldn’t win. Heck, if Superman is a state actor, it might be excluded under the “civil authority” exclusion.

So sorry, Mr. Homeowner, your insurance policy isn’t going to pay for this.

II. Uninsurable Risks and Residual Pools

So what’s to be done? If we’re talking about a universe where superheros and supervillains exist and unstoppable monsters do level significant sections of town every other Tuesday, it seems probable that the legal system and/or insurance industry would take this into account. But because the magnitude of losses caused by superhero battles are so great, it seems likely that the states would have to resort to residual market mechanisms. This is how flood insurance is currently offered on a national level: the FEMA National Flood Insurance Program NFIP is pretty much the only way to buy flood insurance anymore. States have set up residual markets for both high risk drivers and properties with significant windstorm (Mississippi, South Carolina, Texas, etc.) and earthquake exposures (California) too. Basically, state legislatures have decided that even though certain kinds of risk are impossible to insure against on the open market, we want people to take those risks anyway, for a host of possible reasons. We want high-risk drivers to be insured both for their protection and for others, and denying someone permission to drive because they cannot buy mandatory insurance seems unjust. People really want to live in earthquake– and hurricane-prone areas, and those people vote, so we’re going to find some way of making that work, no matter how silly it is.

Residual markets can work in one of a number of ways. One is “assigned risk,” an approach frequently used to ensure that high risk drivers have access to at least the state minimum liability limits for personal auto insurance. Basically, every insurer that participates in the market is required to take their fair share of high risk drivers–for a high premium–as a cost of doing business in the state. They can then spread this cost to their other insureds, keeping the companies profitable. But it seems more likely that the states would create their own “Supervillain Pool” similar to the windstorm pools active in Gulf and coastal states. The way these work is that every insurance policy is charged a tax based on the premium which goes into the residual pool. The pool then reimburses property owners for damages caused by supervillain rampages, etc. Property owners would need to buy “Superhero/Supervillain Insurance” from the pool, and that premium would help too, but because this truly is an uninsurable risk, the pool will probably need to be supported by taxpayer revenue. The idea is that all but the biggest losses will be at least mostly absorbed by the pool but that the government will step in if things get really out of hand. The pool can theoretically up its rates in the years following a big loss to ensure that the government gets its money back, but this rarely happens.

Of course, while we’re modifying the law to account for superheros, it would probably also be the case that insurance companies would include some kind of “superhero/supernatural/paranormal” exclusion, shifting that exposure more directly to the residual pool, as has been done with flood, earthquake, and windstorm exposures.

III. Conclusion

A world with recognized and regular supervillain rampages would probably develop a way to insure against that sort of thing, but traditional property insurance would probably exclude such losses. States would need to create residual pools, much like the way they have for earthquake and hurricane losses.

*”Speculative risks,” i.e. risks where there is a possibility of gain and a possibility of loss–investments, basically–are also uninsurable, because the cost of insuring them would more than erase the potential gain from the transaction. These aren’t excluded by insurance policies because they wouldn’t have been covered anyway; insurers simply don’t write policies for those kinds of risks.

Commentary by James Daily:

I agree with my co-author that comic book worlds have likely developed a way to insure against attacks by supervillains and collateral damage from the response by superheroes.  However, even if the cost is evenly distributed among the risk pool, the question of net social cost remains.  In other words, are superpowers a net social good or a net social cost?  I think that, on balance, superpowers are either neutral or slightly positive.

Empirically, it seems that most versions of the DC and Marvel universes are broadly similar to our own in terms of the standard of living and technology level.  If superpowers were a net social cost we would expect one or both to be lower relative to the real world.  Indeed, if anything the technology level is sometimes higher in comic books, although advanced technology is often confined to superhero and supervillain labs.  Whatever the reason (superheroes fighting regular crime, inventions from Batman, Tony Stark, and Reed Richards), superpowers do not seem to be a net social cost.  This fact supports the civil rights claims of superpowered individuals.

33 Comments

Posted in contracts, insurance

Shapeshifting and Trial Testimony

Posted on December 15, 2010 | 21 comments

A number of superheros and supervillains–Mystique, Amalgam, Everyman, etc.–have the ability to change shape into the appearance of other people. This is used variously for heroic purposes or nefarious deception, but what would the legal system need to do to account for the possibility of a shapeshifter impersonating a witness in a legal proceeding?

The implications are startling. A key witness could be replaced with a shapeshifter to introduce or conceal critical evidence at trial. Heck, one can imagine a supervillain making a decent living impersonating witnesses for a fee!

But surprisingly enough, this is something that the legal system is already pretty well equipped to deal with.

I. Verification

One can perhaps think of technical means that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheros might even find some side work this way, and enterprising inventors could too. But even aside from the potential cost and inconvenience, this is not something the court system would probably impose.

Why? Because juries are already tasked with evaluating the credibility of witnesses. No special care is taken to make sure that witnesses aren’t lying, so why should special care be taken to ensure that they are who they appear to be? Indeed, witnesses must already identify themselves, and we trust juries to tell if a witness is lying about their identity.  Perjury is also already a crime–and impersonating another to give testimony under oath is certainly perjury. So if we already trust juries to weigh the credibility of testimony, including the witness’s claimed identity, it would seem that the problem of shapechangers is an issue of degree rather than kind.

II. Cross-examination

The reason that the legal system puts such faith in juries and takes so few preventive steps to prevent perjury is the system’s reliance on cross-examination.

Cross-examination is the part in a trial where a witness is questioned by the opposing attorney, a process which witnesses universally report is No Fun At All. The attorney is deliberately attempting to catch and exploit inconsistencies, however minor, in the witness’s testimony, and even an entirely truthful, honest witness can be made to appear pretty silly by a skilled trial lawyer. A good discussion of how this works and the ways in which a cross-examiner can accomplish his or her objectives can be found in the Ten Commandments of Cross-Examination.

The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to be confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable, that’s basically just too damn bad.

This is because testifying in court is different from having a discussion with friends over a few beers; there are stringent rules for what can be said and what cannot be said, and the attorney not doing the questioning has every interest in seeing that they are enforced. Remember how in all those law shows attorneys are always yelling “Objection!” That’s because they’re trying to draw the judge’s attention to what they believe (or would like the judge to believe) is a violation of the rules of evidence (although in the real world the reason for the objection also has to be given).

And again, even an honest witness can be tripped up by a skilled attorney. How much more a witness who does not actually have first-hand knowledge of the testimony being offered? Even a shapeshifting telepath is going to have a really hard time slipping one past an attorney who knows what he’s about. By the time a witness appears on the stand, particularly in a case of any significance, both attorneys pretty much know what their respective witnesses have to say. They will all have given extensive depositions, and the trial process is less a revelation of new evidence than it is a formal way of entering that evidence into the record. Any deviation from a deposition is likely to be noticed by the examining attorney and immediately pounced on. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the gig is up: either the doppelgänger will be revealed, or the damage to the case intended by the shapeshifter will be avoided.

At this point, other laws come in to play. Subornation of perjury is itself a crime, so a party or attorney that solicited the shapeshifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Rule 37 permits a judge to impose a variety of sanctions on a party that does not cooperate with the discovery process, up to and including both contempt of court and ruling that the record treat the issue in question as conclusively established for the opposing party.  The attorney may also be sanctioned directly under Rule 11.

III. Conclusion

So here it would seem that the legal system is already pretty well set up to deal with the possibility of shapeshifters in court.

21 Comments

Posted in civil procedure, criminal procedure, evidence

Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Posted on December 14, 2010 | 29 comments

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

29 Comments

Posted in criminal law, superheroes, supervillains, X-Men

Outlawry, Supervillians, and Modern Law

Posted on December 9, 2010 | 21 comments

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

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

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

I. The Nature of Outlawry

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

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

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

II. The Decline of Outlawry

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

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

III. Outlawry as a Weapon against Supervillains

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

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

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

IV. Reimplementing Outlawry

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

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

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

V. Conclusion

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

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

21 Comments

Posted in criminal law

Resurrection Redux: Crimes, Punishment, and Debt

Posted on December 7, 2010 | 31 comments

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

I. Resurrection and Criminal Law

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

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

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

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

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

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

II. Resurrection and contract law

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

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

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

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

III. Conclusion

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

Commentary from James Daily

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

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

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

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

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

31 Comments

Posted in contracts, criminal law

I’m not dead yet! Resurrection and Probate Law

Posted on December 5, 2010 | 22 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

22 Comments

Posted in estate law, property law, superheroes

Immortality and the law

Posted on December 3, 2010 | 44 comments

Is being immortal illegal?

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

I. Successive alter-egos

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

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

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

II. The Rule Against Perpetuities

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

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

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

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

III. The Fee Simple and Alter-Egos

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

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

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

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

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

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

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

IV. Conclusion

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

44 Comments

Posted in property law