Category Archives: movies

The Avengers: Arc Reactors and NYC Zoning Laws

Posted on May 9, 2012 by | 26 comments

For today’s post I’m going to talk about a serious legal issue raised by The Avengers, the issue everyone has been talking about since the movie debuted.  Although it was only hinted at in the movie, I know I can’t wait to see it addressed more fully in Iron Man 3 or even The Avengers 2.  That’s right, I’m talking about how Pepper Potts is going to handle the zoning permits for the buildings powered by arc reactors.

Okay, I may have exaggerated the significance of the issue a wee bit, but it’s still an interesting question.  In fact, Stark Tower raises a host of land use law questions, and the arc reactor is just one of them.  For simplicity, we’re going to assume that Stark Tower was constructed recently (rather than a rehab of a prior building) and had to comply with modern land use laws.

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building.  This doesn’t change the analysis.  Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area.  As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district).  Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent).  There are various ways to increase the FAR, such as having a public plaza on the lot.  The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones.  Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.”  Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing).  Unfortunately, research and development is not allowed as a permitted or conditional use in this district.  In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation.  How can he get it?  There are many possible ways.

II. Getting Around Zoning Laws

He could argue that the zoning regulation is unconstitutional, improperly enacted, or unauthorized by the City’s charter, or he could lobby for an amendment to the regulation.  I don’t know of any reason the regulation in question would be unconstitutional or otherwise invalid, so we won’t go into any more detail there.  If New York is anything like cities that I’m more familiar with, the most likely approach is an amendment to the zoning regulations.

A. Rezoning

Rather than seek a blanket change to the C5-3 district, Stark could propose a zoning amendment to change 200 Park Ave to C6.  Zoning amendments are subject to the Uniform Land Use Review Procedure.  As described by the Department of City Planning, “The ULURP is the public review process, mandated by the City Charter, for all pro­posed zoning map amendments … . ULURP sets forth a time frame and other requirements for public participation at the Community Board, Borough Board and Borough President levels, and for the public hearings and determinations of the Community Boards, Borough Presidents, City Planning Commission (CPC) and City Council.”

So getting a zoning amendment through will require the cooperation of at least five different government entities, plus the public.  Luckily, changing from a C5 to a C6 isn’t too dramatic a shift.  It’s not like Stark wants to build a chemical plant  in the middle of Manhattan.

B. Variance

Another alternative is to seek a variance.  “A variance is an authorization for a landowner to engage in construction or maintenance of a building or structure, or to establish and maintain a use of the land which is  prohibited by a zoning ordinance. It is a right granted by a zoning board of appeals pursuant to power vested in such an administrative body by statute or ordinance, and provides a form of administrative relief from the strict application of zoning regulations.”  Patricia E. Salkin, 2 N.Y. Zoning Law & Prac. § 29:1.  In particular, Stark would be seeking a use variance, since he wants to use the land in a way prohibited by the zoning ordinance.

In New York City, the zoning board of appeals is the New York Board of Standards and Appeals.  The test for use variances is defined by statute in N.Y. General City Law § 81-b:

In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(i) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(iii) the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(iv) the alleged hardship has not been self-created.

This is kind of a tall order, especially the first two requirements.  Stark would have to show that none of the permitted uses of the property would allow him to realize a reasonable return and that for some reason only this particular location is problematic in that way.  It’s pretty hard to buy the idea that Stark couldn’t make decent money off of an office tower in Midtown Manhattan unless he can put ten floors of R&D on it.  But I suppose clever attorneys and experts could craft an argument for it.  Further, Stark would need to show that the whatever unique hardship he is relying on as justifying the variance is not shared by a significant amount of the surrounding properties.

And what if the BSA says no?  Well, then Stark could take the issue to court.  “Actions of the zoning board of appeals are subject to review by the courts, to determine whether the board acted within the limits of its jurisdiction, whether the standards imposed by statute and ordinance were respected, whether the procedural rights of the litigants were observed, and whether the board was chargeable with any abuse of its discretion.”  2 N.Y. Zoning Law & Prac. § 28:30.

A court will not lightly disturb a board’s decision not to grant a variance, however.  “Since the zoning board is given discretion in these matters, the court’s function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion. The board’s determination will be sustained if it has a rational basis and is supported by substantial evidence.” Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 608 (1978).  This kind of deference is common with administrative agencies.  After all, what’s the point of an expert agency if a court can easily overturn its decisions?

III. So About Those Arc Reactors

So far I’ve been talking about the research & development floors.  But what about  the arc reactors?  Well, that’s tricky because it’s not clear just where the reactor is located.  Is the reactor in the building or is it part of the device Stark attaches to the undersea cable?  If the reactor isn’t in the building then that solves quite a few zoning issues.  If it’s not, well….it’s complicated.

Electric power plants aren’t allowed in any kind of commercial district.  Instead, they’re allowed in certain manufacturing districts, New York’s version of industrial zones.  However, just this month the City has adopted new regulations making it much easier for building owners to install solar and wind power generation equipment and even to provide power to adjacent buildings, so long as utility company requirements and other regulations are complied with.  In a world where the arc reactor exists and has been proven safe, it’s entirely believable that the City would allow on-site power generation by arc reactors though it would likely require a text amendment to the current ordinances.

IV. Conclusion

The arc reactors and Stark Tower pose some interesting land use questions, but it’s nothing that couldn’t be resolved with straightforward rezoning or a variance.  Honestly, getting FAA approval for his suit would be a much bigger headache.  So while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective.

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Posted in administrative law, movies, property law

The Avengers: S.H.I.E.L.D.

Posted on May 7, 2012 by | 51 comments

Last weekend, Marvel’s blockbuster for 2012 came out in North America. The Avengers appears to be on track to shatter box office records both domestically and internationally, and with good reason: it’s an awesome movie.

In the next few posts, we’re going to discuss some of the legal background of various aspects of the movie. We’re going to start with how exactly S.H.I.E.L.D. could work, but there will be more to come in successive posts. There are spoilers to follow, though if you haven’t seen the movie by now, what are you waiting for? We discussed the basics of S.H.I.E.L.D. and international law over a year ago, so it might be worth taking a look at that before jumping in here. Continue reading →

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Posted in international law, movies

Snakes on a Plane

Posted on April 16, 2012 by | 15 comments

Snakes on a Plane is a terrible, terrible movie (see for yourself, if you don’t believe us).

It’s also bad on the law.

The premise of the movie is that Samuel L. Jackson (who basically plays the movie version of himself, so we’re going to call him Jackson instead of “Neville Flynn”) is escorting a witness from Honolulu to LA to testify in a murder trial there. This is weird in and of itself, but so’s the way they travel: the FBI commandeers the first class cabin of a commercial flight. This is all kinds of wrong. Continue reading →

15 Comments

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

The Hunger Games and Dangerous Sports II

Posted on March 30, 2012 by | 7 comments

Two weeks ago, we looked at the legality of a “sporting” event like the one depicted in The Hunger Games. There, we were mostly concerned with the legality of organizing or participating in the Games, recognizing that the Games are obviously legal in Panem but manifestly illegal should someone try to conduct a similar event in real life.

This time, we’re going to look at another angle: potential culpability for spectators and sponsors. Continue reading →

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Posted in criminal law, movies

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

John Carter

Posted on March 19, 2012 by | 14 comments

John Carter is Disney’s adaptation of Edgar Rice Burroughs’ Barsoom works, drawing mostly from the first book, A Princess of Mars. Actually, it’s really Andrew Stanton’s adaptation, he of WALL-E fame, because it doesn’t seem like Disney had any actual input, into the film or its marketing. The result is… problematic. But lo and behold, they’ve got a lawyer character who winds up touching on a bit of estate law. So we’ll take a look at that. Some pretty significant spoilers follow. Continue reading →

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Posted in contracts, estate law, movies

The Hunger Games and Other Dangerous Sports

Posted on March 16, 2012 by | 43 comments

[amazon_link id=”0545265355″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] is a trilogy of books, the first of which is also called [amazon_link id=”0545425115″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] and which has been adapted into a film that debuts next week.  It looks like it’s going to be both a good movie and feature more accurate archery than The Avengers, but I digress. The books are set in a future dystopian society in which teenagers, selected more or less at random, are forced to compete to the death in the titular Hunger Games.

Since the book takes place in a fundamentally different world than the real one, we can’t really examine the Games on their own terms. We can say they would certainly be illegal in the real world (no surprises there), but it may be interesting to examine why, exactly. After that we’ll ponder just how dangerous a real-world version of the Games could be without obviously running afoul of the law.

Some very minor spoilers follow (nothing you wouldn’t know from the trailer, I think).

I. The Set-Up

Most entrants to the Hunger Games are selected randomly, but it is possible to volunteer.  That’s how the protagonist enters the Games, for example.  The Games themselves take place in a large uninhabited area in which the competitors (called tributes) are given weapons and supplies and expected to kill each other.  The people running the Games (the Gamemakers) have various carrot and stick mechanisms they use to goad the tributes into competing, and the more or less inevitable result is that a single victor emerges with everyone else dead.  If a group of tributes refused to fight then the Gamemakers would likely kill all of them or all but one.

II. So Why Exactly is This Illegal?

Intuitively this seems like it should be illegal, and it would be in the real world.  For starters, the Gamemakers’ actions are pretty clearly illegal: the involuntary competitors are essentially kidnapped and falsely imprisoned, then threatened with death if they don’t compete.

The voluntary competitors are pretty much just as bad, as they’re agreeing with the Gamemakers to try to kill other people, many of whom are there involuntarily.  That’s conspiracy and either attempted or actual premeditated murder.

(Note: By “voluntary competitors” I mean both tributes like the protagonist who make a direct choice to compete as well as those tributes who enter their names into the tribute selection lottery multiple times in order to earn extra food for their families.  Arguably both are voluntarily entering the Games, whereas the tributes whose names are entered the minimum required number of times could be said to be involuntary competitors.)

The involuntary competitors are only slightly better off.  They aren’t guilty of conspiracy because they didn’t agree to compete, but they may still be guilty of attempted murder or murder because they can’t claim the defenses of duress or necessity, since neither is a defense to murder in most jurisdictions.  They could avoid liability by only fighting in self-defense, however, but that would usually mean waiting until other tributes attacked them first, which isn’t typically a winning strategy.

Now wait a minute, you might say, what about consent?  Doesn’t it matter that the voluntary competitors consented to compete in the games?  The answer is no, not really, even if the minor competitors’ parents also consented.  While a person can consent to an assault or battery (think of boxing, for example), one cannot consent to one’s own serious injury or death. See, e.g., State v. Mackrill, 345 Mont. 469, 476 (2008) (“it is against public policy to permit a person purposely or knowingly to cause serious bodily injury to another, even though that conduct and the resulting harm were consented to”).

Well, what about assumption of the risk?  Aren’t the voluntary competitors assuming the risk that they will get hurt?  The problem here is that assumption of the risk does not extend to intentional wrongdoing, only negligence and recklessness.  Restatement (Second) of Torts § 496A (“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”) (emphasis added).

Similarly, the exception made for the harm inherent in sporting events only applies to lawful sports, whereas the Games are predicated on kidnapping, conspiracy, and threats.  See, e.g, Colo Rev Stats, § 18-1-505(2) (“When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if … the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.”).

That pretty much sums up why the Games would be both criminal and tortious, but what are the real-world limits for something like this?

III. So How Close Can We Get?

Clearly we’ll have to begin with consent, so we can toss out all of the involuntary competitors.  Ideally we’d get informed written consent from both the competitors and their parents, together with explicit waivers of liability for the Gamemakers and other competitors.  Of course, to be meaningful the consent must be ongoing, which means the competitors must be free to leave the game at any time.

An important part of the informed consent process is to ensure that the competitors and their parents are aware of the reasonably foreseeable hazards of the Games.  This helps bring the Games within the exception for lawful sports: “When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: … (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport ….” Model Penal Code § 2.11(2) (emphasis added).

The Games themselves would have to be watered down from a fight to the death to something more like Mixed Martial Arts.  While certainly a vigorous athletic contest, serious injuries are not inherent in MMA, and so consent and assumption of the risk will go a lot farther in eliminating both criminal and tort liability.

That doesn’t mean that everyone is necessarily off the hook.  Competitors and Gamemakers could still be liable for injuries that result from, for example, breaking the rules of the game that are concerned with safety.  See, e.g., Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975).  With children involved the Games would likely need to either take advantage of sovereign immunity or have a hefty insurance contract.

IV. Conclusion

So after all that, what are we left with?  Basically a kind of free-form outdoor MMA, which the competitors can quit at any time.  Not quite as exciting as a forced fight to the death in the wilderness, we’ll admit.  What can we say?  Lawyers spoil all the fun.

43 Comments

Posted in criminal law, movies, torts

My Cousin Vinny: The Perils of Joint Representation

Posted on March 13, 2012 by | 12 comments

Today’s post is our contribution to Abnormal Use’s My Cousin Vinny 20th anniversary celebration. Although it doesn’t have anything to do with comic books or superheroes, we still recommend giving it a watch. It’s a comedy, but it’s actually one of the more accurate representations of trial procedure in a film (which isn’t necessarily saying a lot). If you haven’t seen it, the Wikipedia article has a thorough plot synopsis, but we recommend buying a copy, since it really is a pretty good movie.

Since the movie has been around for 20 years, a lot of ink has been spilled on it, but there’s at least one issue that isn’t often discussed, probably because it’s only implicit in the film. The issue is that the defendants, Bill and Stan, are represented jointly by Bill’s cousin Vinny, but joint representation is fraught with ethical issues, especially in a criminal case. (For those looking for some kind of connection to comic books, I’ll note that a lot of supervillains work in groups and might find themselves in a joint representation situation. The same ethical issues apply.)

Simultaneous representation of clients whose interests may conflict is a common enough issue that there’s a rule especially for it.  ABA Model Rule of Professional Conduct 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The movie takes place in Alabama, and its rule is similar. Notably, the Alabama rules were adopted effective January 1, 1991, so it’s conceivable that the rule applied during the time in which the film is set.

The situation in the movie is an example of paragraph (a)(2): “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”  What exactly does the rule mean by that?  The official commentary goes into more detail:

A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Rule 1.7 Comment 23 (emphasis added). So it seems very likely that the rule applies in this case.

Paragraph (b) describes the circumstances under which a client can be represented despite a conflict, but unfortunately they aren’t met here. It’s far from his worst ethical lapse (repeatedly lying to a judge, anyone?), but Vinny almost certainly cannot reasonably believe that he “will be able to provide competent and diligent representation to each affected client.”  That is, he might believe it (in fact he nearly says as much), but his belief isn’t reasonable given the seriousness of the case and his lack of experience and knowledge. Nor does the movie contain any indication that Bill and Stan gave informed, written consent, although I might excuse that omission on the grounds that it would be a relatively boring detail.

So why exactly is the potential for conflict of interest so grave in a criminal case?  There are lots of reasons, but a major one is that codefendants may be sorely tempted to point the finger at each other in exchange for favorable treatment (e.g. immunity or a better plea bargain). Imagine in this case if Stan (accused of being an accessory to murder) claimed that it was all Bill’s idea and that Bill had kidnapped him after committing the murder.  That’s a fine defense for Stan, but it puts Bill on the hook for both murder and kidnapping. As their attorney it would be impossible for Vinny to be loyal to both Bill and Stan in that situation. The conflict would be further complicated by his family relationship to Bill.

Another example: neither Bill nor Stan waived their Fifth Amendment rights and took the stand.  What if the prosecution had offered immunity to whichever one testified against the other?  It would be virtually impossible for Vinny to advise his clients fairly.

As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict. And, for what it’s worth, Mitchell Whitfield (the actor who played Stan) says in an interview with Abnormal Use that he doesn’t think Stan would have turned state’s evidence if a deal had been offered: “[L]et’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.”

It’s also hard to fault the writers for not wanting to introduce the complexity of two attorneys (with the exception of the brief appearance of the public defender).  But in many real-world criminal cases it’s a common strategy to turn co-defendants against each other, which is why this rule is so important.

Vinny’s joint representation of Bill and Stan was ethically problematic, even if it was ultimately only a theoretical problem.  In my opinion that makes it all the more worthwhile to examine it, much like the legal issues implicit in comic books. I also don’t think one more ethical breach hurts the movie, since Vinny’s inexperience and ethical problems are essential to the plot.  My Cousin Vinny holds up pretty well even when watching it critically. If you haven’t seen it, I recommend it.

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

My Cousin Vinny’s 20th Anniversary

Posted on March 12, 2012 by | Leave a comment

Our friends over at the Abnormal Use blog are celebrating the 20th anniversary of the movie My Cousin Vinny.  While the movie doesn’t have anything to do with comic books or superheroes, it does feature Joe Pesci playing a surprisingly competent trial attorney, which requires almost as much suspension of disbelief.

As part of the celebration, Abnormal Use has asked a number of legal bloggers—including yours truly—to write a post on the film.  Ours will go up on Wednesday, so keep an eye out for it.

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Posted in movies

Chronicle

Posted on February 8, 2012 by | 19 comments

The movie Chronicle came out last week, and it’s pretty good (the Blu-ray version comes out on May 15, 2012).  The basic plot is that three teenage boys develop powerful telekinetic abilities, resulting in, well, as the AV Club put it, “This is why teenagers cannot have nice powers.”  Obviously a lot of what goes on in the film is plainly illegal, especially toward the end, but there are some more subtle and interesting legal issues to discuss.  Spoilers ahead!

Continue reading →

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Posted in movies, torts