Category Archives: administrative law

Ghostbusters and the EPA

Posted on March 28, 2012 by | 18 comments

Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters.  Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city?  And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?

I. Were the Ghostbusters Duly-Designated Representatives of New York?

It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer.  That much covers the city.

Moving one level up, we turn to the county.  The five boroughs of New York City are each coterminous with a county.  For example, New York County covers the same area as Manhattan.  The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city.  There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning.  Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.

Finally there’s the state level.  New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.

So what kind of authorization could there be?  One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655.  That would give the Ghostbusters the powers of regular police officers.  Not actually very helpful against an ancient Sumerian deity, but it’s something.  At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.

Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.

II. Are Ghosts a Pollutant?

Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters.  He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.

* The EPA actually divides the country into regions.  Region 2 covers New York.

** There is no such federal law in the United States.  Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones.  There’s no Environmental Protection Act, though.

Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution.  For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”

shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring

42 U.S.C. § 9601(33).  That’s pretty dang broad and would definitely include hallucinogenic gases.

One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed.  In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.

But we can gloss over all of those issues.  What we really want to know is whether ghosts could qualify as a pollutant.  Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that.  But were the ghosts at least a potential pollutant?

I think they could be, at least under some environmental laws.  The fact that ghosts are, in some sense, living organisms doesn’t seem to matter.  For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act.  33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water).  The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air.  42 U.S.C. § 7602(g).

So it appears that the federal government could potentially regulate the release of ghosts into the environment.  Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.

III. Conclusion

If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing.  Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.

Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor.  The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.

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Posted in administrative law, criminal law, criminal procedure, mailbag, movies

Buffyverse Vampires and Criminal Liability

Posted on February 10, 2012 by | 78 comments

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

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Posted in administrative law, criminal law, mailbag, television

Getting Rich with Superpowers, Part 1: Insider Trading

Posted on January 25, 2012 by | 38 comments

We’ve previously talked about how immortal beings might find it difficult to amass significant wealth simply by virtue of living a long time.  This post marks the first in a series on how other common superpowers might be used to make money in the short term.

One way to make (or lose) a lot of money is via the stock market, and several superpowers lend themselves to taking advantage of the market: telepathy, enhanced senses, invisibility, and time travel, just to name a view.  Each of these could be used to come across valuable information without necessarily breaking any other laws (e.g. without trespassing).  For example, someone with Superman-level enhanced hearing could easily overhear a boardroom conversation, and an invisible person could similarly overhear sensitive conversations in public places. The question, then, is whether using any of this information would run afoul of insider trading laws.

(Note: do not try any of this at home, at least without consulting a competent attorney in your jurisdiction.)

I. Insider Trading

There are three major theories of insider trading liability.  First, one cannot trade on material, nonpublic information if one owes a fiduciary duty  to other traders in the marketplace. Chiarella v. United States, 445 U.S. 222 (1980).  This covers the most common types of insider trading: corporate insiders who trade on confidential information or who give confidential information to an outsider in breach of a fiduciary duty.  See also Dirks v. S.E.C., 463 U.S. 646 (1983).

The second theory is “misappropriation.”  “The misappropriation theory holds that a person commits fraud “in connection with” a securities transaction, and thereby violates § 10(b) and Rule 10b–5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.”  United States v. O’Hagan, 521 U.S. 642, 652 (1997).  This, then, covers the case in which the source of the information is a patsy rather than complicit.  It still requires that the misappropriator owe the source a fiduciary duty, however.

The first two theories are based on applying common law theories of fraud to the SEC rule against fraudulent trading.  The third theory is based on Rule 14e-3, which specifically forbids a certain type of insider trading.  “Rule 14e-3 prohibits any person who is in possession of material nonpublic information relating to the commencement of a tender offer, acquired directly or indirectly from either the bidder or the target company, from trading in target company securities. It also makes unlawful passing on any such information where it is reasonably forseeable that the recipient will trade.”  Donald C. Langevoort, 18 Insider Trading Regulation, Enforcement, and Prevention § 1:10.  On the one hand 14e-3 is broad because there is no requirement of a fiduciary duty, but on the other hand it is narrow because it only applies to tender offers (e.g. mergers and acquisitions).

So, now that we have a rough idea of what constitutes insider trading, let’s see if any common superpowers can allow someone to acquire material, nonpublic information without running afoul of any of these theories.

II. Superpowered Reconnaissance

The first thing to do is to forget about using insider information to take advantage of a potential merger or acquisition.  Rule 14e-3 would almost certainly apply, so our hero (or villain) will have to stick to other kinds of valuable information (e.g. an R&D breakthrough or a pending product recall), and that’s the context we’ll assume for the rest of the post.

In general, merely overhearing something (e.g. a conversation between company employees) in a public space is not a violation under the first two theories because there is no fiduciary duty being broken: the recipient owes the company and its shareholders no duty, and the employees aren’t improperly tipping off the recipient.  So enhanced senses and invisibility would seem to be a good fit.

Telepathy is more problematic.  As we’ve discussed before, telepathy may run afoul of a person’s right to privacy.  Would discovering information about a company be highly offensive to a reasonable person?  Would it matter if the victim was a regular employee of a giant company or an emotionally-invested founder of a small business?  It’s hard to say how a jury would react.  It is not clear to me whether this kind of privacy violation would be sufficient to trigger insider trading laws, however.  The law prohibits the use of deception to acquire insider information, and telepathy could qualify, though it seems a bit strained. S.E.C. v. Dorozhko, 574 F.3d 42 (2d Cir. 2009) (holding that computer hacking to obtain insider information may be “deceptive device or contrivance” prohibited by Rule 10(b) and Rule 10(b)-5).

Time travel seems to be the cleanest of all: the superpowered schemer could simply wait until the information was public, then travel back in time and use it profitably.  This suggests the scheme in Primer might have been legal.

The previously mentioned prohibition against deception suggests that shapeshifting, psychic manipulation, and other forms of trickery wouldn’t work.

III. Conclusion

With the right superpowers and a little luck it may be possible to profit from the stock market without running afoul of insider trading laws.  Has this ever been tried in the comics?

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Posted in administrative law, criminal law, securities law, torts

Are the X-Men Human? A Federal Court Says No

Posted on December 27, 2011 by | 13 comments

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

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Posted in administrative law, international law, tax law, X-Men

Torchwood: Miracle Day Episode 3

Posted on July 25, 2011 by | 12 comments

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.

Continue reading →

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Posted in administrative law, television, torts

Law and the Multiverse Holiday Special – Fourth of July Edition

Posted on July 4, 2011 by | 1 comment

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

I. The Classification System

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

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

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

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

II. Superhero Fireworks

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

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

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

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

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

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

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Posted in administrative law

Animal Sidekicks, Part Three

Posted on April 13, 2011 by | 21 comments

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions (see here for part one and part two).

I. Leash Laws and the Like

Leash laws vary widely from jurisdiction to jurisdiction.  Many cities and counties (and some states) require animals to be kept on leashes or otherwise controlled when in public, or at least in certain public areas.  Sometimes these ordinances are specifically aimed at dogs, but sometimes they are written to apply to all pets or kept animals.  See, e.g., St. Louis County Revised Ordinance 611.200.  It’s not common in the US, but some cities even require dogs to be muzzled in public.

So what does this mean for a superhero with an animal sidekick?  First, it means doing a bit of research before traveling with the sidekick.  This is an area where the law can vary substantially from one city or county to the next, and ignorance of the local laws is not a defense.  It would be pretty embarrassing for a superhero get busted for not having his or her faithful companion on a leash while out fighting crime.

Second, it means brushing up on the defense of necessity.  If violating a leash law allows a superhero and his or her animal sidekick to stop a much worse crime about to be committed by a supervillain, then the defense of necessity may excuse the lesser harm of letting the animal run loose.  Necessity is usually based on some kind of reasonableness standard, so the superhero can’t just let the animal run loose all the time on the theory that a crime is bound to be attempted sooner or later.  Instead, we recommend investing in some kind of quick-release harness.

Note that many leash laws have exceptions for service animals, but we don’t think many animal sidekicks would meet the criteria for being a service animal.  Daredevil briefly had a seeing-eye dog named Deuce, but that’s about it as far as we can recall.

II. Health Regulations

Many animals are also subject to a host of health regulations, particularly vaccination requirements.  There are also laws regarding the quarantine and even destruction of diseased animals, but let’s assume that superheroes keep their sidekicks healthy.

The most important requirement is rabies vaccination, although the rules vary from state to state and even within states (e.g., Missouri doesn’t have a state-wide standard but instead directs individual counties to adopt appropriate rules and regulations.  Mo. Rev. Stat. 322.090).  However, most vaccine laws specify particular types of animals, so they are less of a concern for superheroes with unusual sidekicks.  But really this shouldn’t be much of an issue.  Making sure Krypto gets his rabies shots might be pointless (assuming a superpowered Krypto), but it’s not a significant burden, either.

III. Restrictions on Importation and Ownership

Now we come to the big one: can these animals be lawfully imported (or moved across state lines) or even privately kept at all?  Many states prohibit or restrict private ownership of wild or exotic animals, which are defined differently from state to state: another headache for the superhero on the go.

At the federal level, the Endangered Species Act generally prohibits, among other things, the possession, importation, sale, and taking of endangered species.  16 USC 1538(a)(1).  By the way, “‘[t]ake’ is defined … in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, at 7 (1973).  There are a lot of endangered animal species, and although most of them would probably make pretty bad sidekicks—clams are not known for striking fear into the hearts of evildoers—there are some popular choices on the list, such as the gray & red wolves and several eagles.

So there’s a trade-off here.  Having a wild or exotic sidekick avoids some animal regulations, but it subjects the superhero to a new set at the same time.  Also remember from part two of this series that wild animal owners are subject to a higher standard when it comes to injuries caused by their animals.  On balance, our conclusion is pretty simple: “get a dog.”

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Posted in administrative law, criminal law

Mailbag for April 8, 2011

Posted on April 8, 2011 by | 10 comments

This week we’re taking a look at reader questions about the legitimacy of certain kinds of punishment and whether doctors or veterinarians would be legally licensed to treat extraterrestrials.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Modification/Mutilation of Supervillains as Punishment

Joe asks about the punishment meted out to Sabbac, basically an evil version of Captain Marvel who, like his counterpart, could transform into a superbeing by uttering a word of power. When Sabbac was apprehended, he was sentenced to having his larynx removed to prevent him from speaking this word. Joe’s question is whether this would be a constitutional punishment, given the 8th Amendment prohibitions against “cruel and unusual punishment.”

The most obvious parallel is to chemical castration, where convicted sex offenders, usually pedophiles, are treated with what amounts to Depo Provera, a hormone drug usually used as a contraceptive. In women, that’s basically its only use, but in men, the drug generally results in a massively reduced sex-drive. Which, for pedophiles, is no bad thing.

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard to come up with standing. Either way, despite health and civil rights concerns, this appears to be a viable sentence in the US legal system.

Fair enough. But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute is a little harder both to deal with and to hide. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be.  We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (8 to 1!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the US after Buck, most recently in 1981.

On the other hand, Sabbac isn’t your run-of-the-mill offender here. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is “cruel and unusual” is whether or not the punishment is grossly disproportionate proportional to the severity of the crime.  Ewing v. California, 538 U.S. 11, 21 (2003).  This is, in part, why the Supreme Court has outlawed the death penalty for rape cases, i.e. if no one is dead, execution seems to be a disproportionate response. Coker v. Georgia, 433 U.S. 584 (1977).

The 8th Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).  Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or violative of fundamental fairness, but in a case like this necessity goes a long way, especially because the purpose of the operation is not retributive punishment.

So then, if the only way to prevent Sabbac from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

II. Medical Treatment for Aliens

Jona asks whether it would be more proper for an alien to seek treatment from a physician or a veterinarian. This question revolves around the extent of the license under which each profession operates. Like law, the medical professions are all fairly well regulated and require practitioners to be licensed by the state. This serves both to ensure that professionals are competent, but it also permits the state to keep at least minimal tabs on those professionals in the event one of them should do something bad. It also permits the state to prohibit a professional who has engaged in egregious misconduct or is otherwise unfit to practice from doing so. There’s a lot in this, and we’ll probably return to it for a full post down the road a ways, but here’s some preliminary thoughts.

The question here is which license would provide the authority to treat an extraterrestrial. Whether or not the alien is intelligent is not actually part of the analysis, because that isn’t how the MD and DVM licenses are distinguished. Physicians are licensed to treat homo sapiens, and veterinarians are licensed to treat pretty much everything else. So at first glance, it would seem that vets would be better positioned to treat aliens than physicians, particularly aliens of the non-rubber forehead variety.

This isn’t really a matter of competence mind you: both a physician and a vet would presumably be equally out of their depth if faced with truly alien biology, if only because neither would actually have any idea what’s going on in there. Even analogizing to known species’ physiology would be impossible without a significant amount of study, and depending on the circumstances under which treatment was necessary, there might not be time for that. So if, for example, aliens crash-land and injured survivors are located, time may well be of the essence. In that case, it would probably wind up being a measure of which kind of professional could be located first.

On the other hand, physicians have two things going for them that vets tend not to. First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene.  Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense. There aren’t many people who can afford to have their dog put on a ventilator, let alone livestock, the latter of which are raised for explicitly economic purposes. There’s just no odds in it. So as a matter of practice, physicians may well be more likely to be involved, licensing issues aside.

Ultimately, the question is probably moot. If we are operating under the assumption that this is an unexpected and potentially one-off occasion, licensing matters aren’t likely to even come up. They usually only do in malpractice situations, and most stories involving emergency treatment of extraterrestrials don’t seem to permit the aliens a sufficient degree of integration with human society to file lawsuits. And if aliens are that common and integrated, the medical professions would adapt to figure out which professions would wind up being licensed to treat them. Depending on their physiology, it could go either way.  There’s more to consider about this, though, so look forward to a follow-up post in the future.

That’s all for this week. Keep sending in your questions!

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Posted in administrative law, constitutional law, mailbag

Limitless

Posted on March 21, 2011 by | 10 comments

[amazon_link id=”B005DD7MH8″ target=”_blank” container=”” container_class=”” ]Limitless[/amazon_link] opened this weekend, and is the subject of Law and the Multiverse’s second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend. So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US.  For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration.  Clinical trials for new drugs must also have FDA approval.  Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin).  Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule.  Now we’ll look a little closer at how all of this affects NZT.

I. The Food and Drug Administration

It is illegal to sell, for human consumption, any pharmaceutical product which has not been approved by the FDA, which may be marketing approval or approval of a clinical trial. This is why pharmaceutical companies spend so much time and money on the approval process: one bad trial can mean millions in R&D going down the tubes. The FDA was (more or less) created by the Pure Food and Drug Act of 1906, later replaced by the Food, Drug, and Cosmetic Act of 1938. These and later acts make it a crime to market or distribute any drug (or medical device, food additive, or dietary supplement) without FDA authorization. The approval process for each category is different, which is why almost anybody can sell a dietary supplement, provided they do not make claims which would suggest that it is a drug and it isn’t drug-like enough to make the FDA want to categorize it there regardless of claims.

Still, as soon as the FDA got wind of this, you can bet that they’d take action, probably including bringing in the DEA, to see that the creation and distribution of this drug was brought under federal oversight. This isn’t entirely a bad thing, either. Sure, the War on Drugs is notoriously problematic from a civil liberty, social policy, and even race relations standpoint, but the real objection is that the government is misclassifying drugs, not that it shouldn’t be classifying drugs at all. In the nineteenth century, there really was no regulation on any of this stuff, so a drug containing heroin could not only be marketed freely, but without any indication that it contained heroin. A consumer could get addicted to a powerful narcotic without even realizing that they were using it. This, obviously, is not an ideal situation. Similarly, without regulating pharmaceutical manufacturing, companies could use unsanitary facilities or dangerous ingredients in their products without anyone knowing or being able to do anything about it. Again, not a good outcome. So even if we think that our approach to certain interesting substances needs to be re-evaluated, deregulating them entirely is probably not the best option.

So would the FDA ever approve something like NZT?  Probably not, though theoretically it could, and if it did it wouldn’t approve it for average people like Edward Morra.  The FDA most often approves drugs that treat, diagnose, or prevent diseases.  Since having average intelligence is not a disease, the FDA would be reluctant to approve NZT unless it had virtually no side effects.  Since it apparently kills people who stop taking it, approval is unlikely.  The FDA could limit NZT’s approval to use by people with development disabilities, but it’s also rare for the FDA to approve drugs that people have to take for the rest of their lives.  Usually such drugs are only approved for life-threatening conditions.  NZT would definitely struggle for regulatory approval.

II. The Controlled Substances Act

Many drugs, both approved and unapproved, are regulated under the Controlled Substances Act, which operates in two primary ways. The statute itself includes a list of scheduled substances, and it empowers the attorney general to modify the schedule, although in practice the schedule is modified by the Drug Enforcement Agency as informed by the FDA. The statute lays out the criteria by which substances are to be categorized into different schedules, but other than the drugs which Congress has scheduled by legislation, the statute basically lets the attorney general issue his or her own findings as to which drugs belong where.

Schedule I substances are basically illegal entirely, i.e. illegal to create, distribute, or possess. They have a high potential for abuse, no currently accepted medical use, and are unsafe to use even under medical supervision.  There are rare exemptions given for research, but that’s about it.  Schedule I includes things like heroin, marijuana, LSD, methaqualone (Quaalude), and a host of hallucinogens.

Schedule II includes drugs which have a potential for abuse which is less than those on Schedule I, and can be prescribed under certain circumstances. Cocaine, believe it or not, does fall here, as it is occasionally used as a topical anesthetic even today. Oxycodone, morphine, and most of the other narcotics fall in this schedule, as do amphetamines.

Schedule III is, again, less serious than Schedule II, etc., all the way down to Schedule V, which includes some substances (such as cough syrup with codeine) which are actually available over-the-counter in other countries.  It should be noted that most prescription drugs are not scheduled at all.

NZT is obviously something that would be scheduled by the appropriate federal agency—probably the FDA—and given its properties would be a good candidate for either Schedule I or II. It appears highly addictive, or at least the people who stop taking it tend to die, though it could potentially have a legitimate medical use. Giving it to developmentally disabled persons might enable them to live normal lives, for example, and as NZT is not said to have any adverse side effects other than dependency, the FDA might theoretically approve such a drug if a proposal were submitted. Either way, Eddie is taking it without a prescription. Is that illegal?

Maybe, maybe not.  It depends on how closely related NZT is to a known controlled substance. The federal government and many states have passed what are generally referred to as Analog Acts (e.g. the Federal Analog Act).  These laws attempt to regulate substances that are substantially similar to known controlled substances.  We say ‘attempt’ because the courts are not in uniform agreement as to whether such laws are valid or not.  In an effort to broaden the reach of the laws the legislatures tended to draft them very generally, to the point that some courts have held them void for vagueness, which is a rare but serious defect in a criminal law.  And this makes sense: for a criminal law to work people have to know what, exactly, is being criminalized.

But let’s assume that NZT is an entirely novel substance.  Certainly there’s nothing similar on the market, so that seems like a reasonable assumption.  New controlled substances need to be placed on the list via legislation or administrative procedures. A general rule of the US legal system is that if a given act is not prohibited, it is permissible. Inventing a new drug and deciding to take it is not illegal until the government says it is. Which is why you periodically see states and municipalities freaking out over whatever new substance the kids are using these days. Most recently it was spice, a kind of synthetic cannabis. Until that happens, new, unapproved drugs are basically fair game to create, possess, and consume.

But they aren’t legal to distribute, because that constitutes a commercial transaction over which the federal government has exerted pretty expansive jurisdiction. This power generally comes from the Commerce Clause, and the Supreme Court has been pretty generous in interpreting the Commerce Power where the regulation of drugs is concerned.  See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005).  So while NZT is theoretically legal for Eddie to have and to use, the guy he got it from was definitely breaking the law.

We’ll keep these reviews coming as more interesting movies are released. A ton of great comic book movies are coming out this summer, including [amazon_link id=”B005H9B44A” target=”_blank” container=”” container_class=”” ]Thor[/amazon_link], [amazon_link id=”B004LWZW42″ target=”_blank” container=”” container_class=”” ]X-Men: First Class[/amazon_link], and [amazon_link id=”B005ZCXPP0″ target=”_blank” container=”” container_class=”” ]Captain America[/amazon_link], so stay tuned!

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Posted in administrative law, criminal law, movies

Law and the Multiverse Mailbag VI

Posted on February 5, 2011 by | 18 comments

In today’s mailbag we have questions about FDA regulations and superpower loss.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

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Posted in administrative law, criminal law, mailbag, torts