Category Archives: superheroes

Guest Post: Clark Kent’s Taxes

Posted on January 2, 2013 by | 27 comments

Today we have a guest post from Martha L. Voelz, an associate with S.H. Jacobs & Associates LLC in New York that we met at New York Comic Con.  As we mentioned in a recent post, Clark Kent has quit his job with the Daily Planet to become a blogger.  Martha, who practices tax law, has written a post about some of the tax consequences of Kent’s newfound self-employment.  As with all of our posts, this post is not legal advice, does not create an attorney-client relationship, and does not necessarily reflect the opinions or views of the author’s employer.

Being Your Own Boss — Tax Consequences

With Clark Kent preparing to strike it out on his own in Superman #13, there are several  legal issues he faces as his own boss. As James Daily pointed out in his post, as an independent blogger and reporter Kent will have new intellectual property and liability issues. He also will have some tax differences as well.  For this post, I am sticking to Federal tax issues, but Kent will likely have state and local tax issues too.

As an employee, Kent’s share of income, Social Security and Medicare taxes were calculated and paid to the Internal Revenue Service (“IRS”) by his employer.  As his own employer, Kent now has to calculate and make these tax payments himself. Let’s start with the Social Security and Medicare tax differences, known as FICA and Self-Employment tax.

I. FICA v. Self Employment tax

When Kent received his pay stub from the Daily Planet, he would have seen withholding for his Federal income taxes and another  line notation called FICA. FICA stands for Federal Insurance Contribution Act, and this covers Kent’s tax contribution to Social Security and Medicare. FICA is found in §§ 3101-3128 of the Internal Revenue Code, which is part of the United States Code.

The total FICA tax rate is 15.3%, which is normally paid equally between the employer and employee.  Kent’s portion of FICA would normally be 7.65% and is broken down like this:

  • Social Security – Kent would pay 6.2% tax on his wages (including certain benefits) capped for the year at $110,100 in 2012 and will be capped at $113,700 in 2013. Anything Kent earns over the cap is not subject to the Social Security tax.
  • Medicare – Kent would pay 1.45% on his wages (including certain benefits). There is no yearly cap on this portion of the tax.

The reason for noting how FICA is normally paid is because in 2012 FICA is not working “normally”. In order to stimulate the economy, Congress reduced an employee’s portion of the Social Security part of FICA to 4.2% in 2011 and kept that reduction for 2012. This reduction is not set to continue in 2013. If Kent was working at the Daily Planet, when he received his first pay check of 2013 he might have been shocked by the reduction in his take-home pay and the sudden “increase” in the FICA line.

What makes this different for Kent as a self-employed taxpayer is that FICA does not apply. Instead self-employed taxpayers contribute to Social Security and Medicare under the Self-Employment Contributions Act of 1954, known as the Self-Employment Tax. This tax is found under §§1401-1403 of the Internal Revenue Code.

On its face, the Self-Employment Tax seems harsher because the taxpayer normally pays all 15.3% of the tax, which under FICA is split between the employer and employee.  However, the same 2012 reduction to the employee portion of the Social Security tax applies to the Self-Employment Tax. This means in 2012 the Self-Employment Tax rate is 13.3% and the breakdown would be as follows:

  • Social Security – Kent would pay 10.4% tax on his net earnings with the same income caps in 2012 and 2013 as FICA.
  • Medicare – Kent would pay 2.9% on his net earnings.

There are some additional differences in how the Self-Employment Tax is calculated to even out the differences between this tax and FICA.

First, the Self-Employment Tax is calculated on net earnings of the business and not the gross income. Net earnings are the amount Kent earns reduced by certain business expenses he may have during the year. Second, a portion of the Self-Employment Tax Kent paid may be deductible on his federal income tax return. This in turn may put Kent in a lower tax bracket and reduce his federal income tax.

II. Estimated Tax Payments

By becoming self-employed, Kent will have to calculate and pay income tax and Self-Employment Tax on his own. He will have to do this by making estimated payments to the IRS using Form 1040-ES. This form will help Kent calculate both his Federal income and Self-Employment Taxes.

He will need to file and make payments for each quarter to avoid an underpayment penalty. Quarterly estimated payments are due April 15 (for January, February and March), July 15 for (April, May and June), October 15 (for July, August and September) and January 15 of the following year (for October, November and December). If the due date falls on a Saturday, Sunday or Holiday, then the due date is typically the following business day.

Filing and payment is considered completed on the mailing date, and it is a good idea for Kent to send anything to the IRS via Certified Mail Return Receipt. This is his insurance should the IRS allege he missed a payment or filing deadline. Alternatively, he can make his quarterly estimated payments using the Electronic Federal Tax Payment System.

III. Happy New Year! – 2013 Tax Surprises

There are a few tax surprises in store for Kent and the rest of us taxpayers between the 2012 and 2013, in addition to watching our Social Security tax payment revert back to its normal amount.

First, some taxpayers may have to make an Additional Medicare Tax payment. If Kent makes over $200,000, then an Additional Medicare Tax will kick in. For every dollar over $200,000, he will pay Medicare Tax at 2.35%. (I assume for the rest of this post that Kent is not getting married in 2013 and has a taxpayer filing status of “Single”.)

Second, the Federal income tax brackets are set to revert to tax rates we last saw under President Clinton. The bottom income tax rate goes from 10% to 15% up to a maximum tax rate of 39.6%. Assuming Kent has an adjusted gross income between $35,351 and $85,650, his tax rate will go from 25% to 28% in 2013. This assumes that Congress does not make tax code adjustments connected to the “Fiscal Cliff” situation, which is still up in the air as of this writing. [Ed. note: the fiscal cliff has apparently been avoided, but if Kent makes more than $400,000 per year then he would pay 39.6% on income above that level.]

One of the best things Kent can do is read up on his obligations as a self-employed taxpayer and check out  the following IRS publications: Publication 334 –Tax Guide for Small Business and Publication 505 – Tax Witholding and Estimated Tax. If he doesn’t want to tackle this himself, hiring a certified public accountant is the best thing he can do. (Plus, the expense is a tax deduction in his new life as a self-employed reporter!)

27 Comments

Posted in Superman, tax law

Superhero Journalists Revisited

Posted on December 21, 2012 by | 14 comments

You may recall our previous post about superhero journalists Clark Kent and Peter Parker, which discussed how copyright affected them differently as an employee and an independent contractor, respectively.  Well the times they are a changin’, and Clark Kent quit his job at the Daily Planet in Superman #13 to become a blogger.  This will have more than a few legal consequences for Kent, some of which we’ll touch on today and some of which will have to wait for a future post.

I. Intellectual Property

As an individual Kent will either be working as a freelancer, selling stories to companies like the Huffington Post, or he may publish stories himself.  Regardless of which business model Kent chooses, he’ll also have to choose a form of business association (corporation, LLC, etc).  Basically, he could either choose some sort of corporation, or he could operate a sole proprietorship.  The latter is easier, but it’s also riskier (more on that later).

With regard to IP, the different kinds of business association give him some options.  For example, he could be an employee of a corporation, in which case the copyright in his works would be automatically owned by the corporation, just as they were owned by the Daily Planet when he worked there.  Or, if he wasn’t an employee then he could assign those copyrights by contract.  And if he chose not to incorporate, then he could retain ownership of the copyrights as an individual.

One practical effect of this choice will come into play when contracts with publishers are signed.  If Kent’s company owns the copyrights (either automatically or by assignment), then the company will be the one selling the stories, which entails either assigning the copyright to the publisher or granting the publisher a license.  If Kent operates as an individual, then it’ll be Kent selling the stories directly.  Either way it’ll probably be Kent signing the contracts, since he’ll be his company’s sole employee/shareholder/member.  The difference will be whether he signs it something like “Clark Kent, Manager, KentCo LLC” or just “Clark Kent.”

So what’s the point of all of this?  Why would Kent bother setting up a company, especially if he’s going to be the only employee or if it won’t even have any employees?  The answers are, as they so often are in the law, liability and taxes.  Taxes will have to wait for a future post, but let’s take a brief look at liability.

II. Liability

As a writer working alone, Kent probably won’t have to worry too much about some of the common sources of liability for companies, such as products liability or workplace injuries.  But he will have to worry about suits for defamation, invasion of privacy, and related torts.  To a certain extent these risks can be insured against, and it’s usually part of commercial general liability insurance, but there are limits to what insurance will cover.  If Kent intentionally defames someone or (more likely) intentionally invades their privacy, then an insurer isn’t going to cover that.  This is where the liability protection of the corporate form comes in to play.

Basically, the way this works is that the plaintiff could sue Kent’s corporation or company but not Kent himself as an individual.  This means that the corporation’s assets would be vulnerable in the suit, but not Kent’s personal assets.  There are some exceptions to this general rule, however.  Sometimes a plaintiff can “pierce the corporate veil” and sue the employees or directors and officers of the corporation as individuals.  There are several reasons why this can happen, but some of the most common are when the corporation is just an “alter ego” of the individual (i.e. they aren’t really distinct entities) or when the corporation is under-capitalized (i.e it doesn’t have nearly the assets it should given the kinds of risks it undertakes).  Both of these are potential issues for a one-person corporation or LLC.  Kent will have to be careful to observe the corporate formalities, avoid commingling personal and corporate assets, and maintain adequate capital in the company.

If Kent decides not to incorporate but instead operate a sole proprietorship or even act as an individual, then he won’t have this benefit.  He could be named in the suit as an individual and his assets would all be up for grabs, subject to the limitations of bankruptcy.  Incorporation has some upfront costs and requires some effort to maintain, but it beats being on the wrong end of a million dollar damage award.

III. Conclusion

So far there haven’t been a lot of details in the comics, but it’ll be interesting to see where this part of the Superman story goes.  Clark Kent’s work at the Daily Planet has been an iconic part of the character for decades.  “Clark Kent, mild-mannered blogger” doesn’t have quite the same ring to it.

14 Comments

Posted in copyright, intellectual property, privacy law, Superman, torts

I Married a Skrull!

Posted on October 5, 2012 by | 36 comments

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  “Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

36 Comments

Posted in family law, Fantastic Four, mailbag, tax law

The Scarlet Witch and Insanity

Posted on September 19, 2012 by | 22 comments

Christopher writes:

In fairly recent issues of Avengers, the Scarlet Witch has returned from being in hiding (of a sort) for years. Her last real interaction with her old team and mutant kind was not a pleasant one. She went mad and attacked the Avengers, leading to the deaths of Ant-Man in an explosion and her own husband, the Vision, at the hands of a berserk She-Hulk, and Hawkeye  was lost to a Kree warship as her reality warping powers basically engineered the worst day ever for the team. Not long after that an event called House of M happened and it ended with her essentially depowering thousands of mutants, many of whom were killed in the aftermath by religious terrorists.
My question is: once the Avengers vs. X-Men crisis is over, could any of those people affected actually seek legal action against her? I’m sure that the Avengers will forgive her, since they tend to take a lot in stride and be really forgiving even when they should be still rather angry, but isn’t it on the shoulders of the government to prosecute for deaths anyway? And not to mention thousands of mutants who have lost their powers who might not have wanted it, and the families of those killed in the aftermath? Frankly, how can she possibly actually remain a hero and not stuck in jail for the next millenium?
The Scarlet Witch’s madness is a great example of comic book writers’ (understandable) tendency to overlook the consequences of their larger-than-life plots.  So would Wanda be on the hook either criminally or civilly?  Or would she have a viable insanity defense?
I. Insanity
We’ve talked about the insanity defense a few times before (here, for example), usually concluding that it doesn’t apply.  This may be one of the cases in which it does.  The Scarlet Witch’s madness may have been caused by some sort of possession or it may have been a more common sort of mental illness, perhaps related to the deaths of her children.  Psychic possession could be a kind of insanity or it could simply eliminate the mental state required to commit a crime; either way, that would be an effective defense.  But what if the Scarlet Witch wasn’t being actively controlled but was merely ‘ordinarily’ mentally ill?
Unlike many supervillains, Wanda may actually be legally insane.  As Dr. Strange describes her in Avengers #503: “Reality controls her. … Reality, eventually, as she knows it, starts to slip away. Elude her.  Blur.  … She loses herself, her reason. … [Y]ou’d say to yourself, this sounds like a person who has lost control of themselves on a deep psychological level.  You’d say this sounds like a disturbed person.”  That sounds a lot like it would satisfy the most common insanity test, the M’Naghten test: whether “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
II. Liability
But supposing Wanda wasn’t insane, she could face both civil and criminal liability.  However, in the US system the government is not strictly required to prosecute any particular crime, and you can imagine how it might be reluctant to try to go after someone as powerful as the Scarlet Witch.  Even so, the depowered mutants, Ant-Man’s survivors, and Hawkeye’s survivors could probably all sue her in civil court.  The nice thing about a civil case is that if the Scarlet Witch doesn’t show up after appropriate efforts are made to serve her with process, then the plaintiffs could get a default judgment.  I don’t know if she has bank accounts or other assets that could be seized to satisfy a default judgment, but if she does then that could provide some relief to the injured parties without having to actually get her to show up in court.
III. Conclusion
The Scarlet Witch has a plausible insanity defense.  However, while she might not be guilty of a crime or liable for any torts, I’m not sure that makes Captain America’s decision to offer her a spot in the Avengers more sensible than it would if she had committed the crimes in a sane state (although she declined the offer).

22 Comments

Posted in criminal law, X-Men

Dodging Missiles, Attracting Liability?

Posted on August 27, 2012 by | 11 comments

(Note from May 8, 2020: Subculture for the Cultured is no longer online, so the links in this post have been changed to use the Internet Archive Wayback Machine.)

Our latest monthly column at Subculture for the Cultured is up. It was inspired by this question from Promethee:

I’m watching Ironman 2 (I know, I’m late) but something that seems to happen quite a lot (and come to think of it happens in like every other superhero movie) is the scene where the hero is being chased by some sort of tracking missiles. At that point, the hero flies at some sort of building and when really close, takes a tight turn. The missiles can’t turn that tightly, so they fly into the building destroying it and killing a bunch of people. Of course, whoever fired the missiles has plenty of liability coming at them. But what about the hero who performs the maneuver?

Check it out!

11 Comments

Posted in criminal law, Iron Man, mailbag, movies, sftc columns, torts

Marriage and the Multiverse

Posted on August 17, 2012 by | 59 comments

Today’s question comes from Marcus, who pointed me to this question from James Nicoll: “Under current US law, can djinn marry humans?”  This was apparently inspired by the show I Dream of Jeannie, in which a human marries a genie.  The broader issue of inter-species marriage comes up frequently in comics, however.  For example, Clark Kent, a non-human Kryptonian, has married Lois Lane, a human.  In both cases the true nature of the participants was not public, so the issue didn’t come up directly.  But if Clark Kent had been ‘out’ as Superman or if Jeannie had been ‘out’ as a genie, would the marriage have been legally recognized?

Alas, probably not.  First, we can consider states that have laws prohibiting same-sex marriage, as they have narrowly defined marriage laws.  But even states that allow same-sex marriage do not go so far as to recognize Kryptonian/human or genie/human marriage.

Many US states prohibit same-sex marriage, either by statute or constitutional provision.  The exact language varies, but typically some variation of “one man and one woman” is used.  Precise definitions of “man” and “woman” are typically not found in state statutes, but the plain meaning of the terms is a male human and a female human, respectively.  This can be seen by reference to animal cruelty laws, which delineate humans as separate from other kinds of animals.  See, e.g., Code S.C. § 47-1-10(1) (“‘Animal’ means a living vertebrate creature except a homo sapien.”); R.S.Mo. 578.405(2)(1) (“‘Animal’ [means] every living creature, domestic or wild, but not including Homo sapiens”).

At the federal level, 1 U.S.C. § 8 defines “person” to include “every infant member of the species homo sapiens who is born alive at any stage of development.”  This is an inclusive rather than exclusive definition (and it’s not specifically about marriage), but it underscores the point that only humans are people.  The federal Defense of Marriage Act provides (for now) that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”  Combined with 1 U.S.C. § 8 and the plain meaning of the words, federal law also appears to only contemplate marriage between humans.

While Congress may have the power to grant legal personhood to non-human animals (see Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)), it has not done so yet.  If non-human animals do not have standing to bring suit in court, then marriage would seem to be right out.

And non-humans could be granted legal personhood without necessarily granting them the right to marry humans.  If cetaceans or primates are ever granted personhood, for example, it is incredibly unlikely that a human could marry a dolphin or a chimpanzee.  Thus, the fact that an ‘out’ Clark Kent was allowed to become president does not necessarily mean he could legally marry Lois Lane.  The Constitution merely requires that the president be “a natural born citizen,” but there are many citizens that are prohibited from marrying who could nonetheless theoretically be elected president (e.g. someone who was mentally incapable of consenting to marriage).  It’s about as unlikely as an alien being elected president, but it’s legally possible.

A growing number of states recognize same-sex marriage, but their laws are still framed in terms of humans.  For example, Vermont’s law defines marriage as “the legally recognized union of two people.” 15 V.S.A. § 8.  Vermont further defines “person” as “any natural person” plus various kinds of legal entities such as corporations. 1 V.S.A. § 128.  So once again we can fall back on the fact that non-human animals are not (presently) persons.  See, e.g., Cetacean Community, 386 F.3d at 1175-79.

So what does this mean for Jeannie and Tony, Lois and Clark, and other cross-species couples?  For starters, their marriages are likely void, and there may also be criminal liability (e.g. fraud).  It is possible that the courts could come to the rescue here and recognize genies, Kryptonians, Tamaraneans, etc, as legal persons who have the right (perhaps under Equal Protection) to marry humans.  But given the slow progress of marriage equality between humans (Loving v. Virginia was decided in 1967; same-sex marriage is still widely prohibited), this seems like a bit of a stretch.

59 Comments

Posted in family law, mailbag, Superman

Batman: Dark Victory I: Violations and Remedies

Posted on August 8, 2012 by | 12 comments

Batman: Dark Victory is the 1999-2000 fourteen-issue limited series which picks up where Batman: The Long Halloween left off, which is in turn a continuation of Frank Miller’s Batman: Year One story. It deals with the aftermath of the Holiday murders. Specifically, some of the legal aftermath of the Holiday murders. We’re going to take a look at one of the major legal plot points here—spoilers within, regarding both The Long Halloween and Dark Victory—and one of the tangential issues that comes up in that setting. Specifically, we’re going to look at allegations of the violation of the civil rights of a criminal defendant and potential remedies for such violations.

I. Violations

The new District Attorney, Janice Porter, says that she’s going to reopen the Holiday file. Alberto Falcone, son of the crime lord Carmine Falcone, was arrested, tried, and convicted for the Holiday killings. But during the arrest, Batman severely beats him, to the point that his right hand becomes essentially useless, permanently. Porter suggests that this is a violation of Falcone’s civil rights.

She’s almost certainly correct. The Supreme Court discussed excessive force by police officers in Graham v. Connor, 490 U.S. 386 (1989). It held that the determination as to whether an officer’s use of force is “reasonable” is a Fourth Amendment question—not a Fourteenth or Eighth Amendment one, as had been suggested—and that the analysis is objective. First of all, for us even to get to this question, there has to have been some kind of state action. There are two possible routes here. One could argue that Batman was a state actor. He was working very closely with Commissioner Gordon at the time, so this is plausible. One could also argue that Gordon standing by and letting Batman hand out the beating amounts to tacit police approval of Batman’s actions, making that a state action regardless of any prior relationship.

Assuming state action and given the severity of the beating, saying that Falcone’s civil rights have been violated seems patently obvious. But what happens next is… not.

II. Remedies

So Falcone’s civil rights have been violated. In real life, most of the time what happens in these cases is that the criminal defendant gets to sue for damages. The Civil Rights Act of 1871 contains a provision, now codified as 42 U.S.C. § 1983, which creates a private cause of action for violations of one’s civil rights by state or local officials.  This means a suit against both the officials and potentially also the state or local government.  Monell v. Dept. of Social Servs., 436 U.S. 658 (1978).  Notably, the suit can be both for damages and for an injunction designed to prevent future harm of the same type.  One wonders whether Falcone could have sued to prevent the Gotham City Police Department from working with Batman in the future.

But damages and possibly an injunction to prevent future harm are pretty much it. Unless the beating lead to the discovery of evidence which was critical in procuring the conviction (e.g. a forced confession), the conviction itself will stand. And in the absence of any change about the defendant’s guilt, any modification or reduction in a convict’s sentence is unlikely. Or rather not just unlikely, but pretty much unheard of. In the story, Porter reopens the Holiday file and somehow gets a Gotham City judge to modify Falcone’s sentence from incarceration in Arkham Asylum to house arrest in the custody of his brother. In real life, it’s difficult to see how something like this might work. Falcone is guilty. There were no irregularities with his prosecution. He got the snot beat out of him during his arrest, but as far as criminal procedure goes, there isn’t anything all that interesting going on.

So this part of the story just doesn’t work. DAs rarely reopen cases, and usually only when there’s new evidence suggesting the defendant’s innocence. But we’re not sure there’s even a mechanism whereby a DA could seek a reduction in a convict’s sentence just because he was maltreated prior to prosecution. If the prosecution wants a lighter sentence, they can ask for that during sentencing. But later prosecutors don’t get to go back and muck about with prior prosecutors’ convictions.  It is possible that a prosecutor could request that the governor commute the prisoner’s sentence, but there’s no sign of that here.

III. Immigration

As an aside, the judge, Judge Harkness of Gotham City, says that if there is any funny business with Alberto Falcone after he is released to house arrest that “I will make it my personal business to see that immigration takes another look at you, sir,” meaning Mario Falcone, who is trying to take his family legitimate. Are there any teeth to this threat?

One is reminded of the ongoing controversy in Arizona and elsewhere about state efforts to get involved in immigration activities. The federal government is, to put it mildly, not amused. The Supreme Court recently struck down parts of Arizona’s SB 1070 law as unconstitutional encroachments on an area of law reserved for Congress. The outcome, while disappointing to some, wasn’t all that surprising to anyone, as immigration is an explicitly federal subject under Art. I, sec. 8, cl. 4.

But that isn’t really what’s going on here. This isn’t an example of a state government making explicit and systematic moves to affect immigration policy. Rather, it’s an example of a state official saying he’s going to use what influence is his to wield to affect the outcome of a particular case for what are arguably legitimate reasons. If a state court judge in a state and community not really known for its immigration problems were to call up his local U.S. Attorney or regional ICE office, he might well be able to get some attention. Not as a matter of law, mind you, but as the sort of consideration that governmental agencies frequently show each other. So while the judge doesn’t have the authority to deport Mario, the story doesn’t suggest that he does, merely that he might be able to make a few phone calls. And he just might.

IV. Conclusion

Dark Victory is absolutely right that Alberto Falcone’s civil rights have been violated. But how that’s supposed to add up to him being released from Arkham Asylum—where he was sent after a successful insanity plea—into his family’s custody is far from clear. And Judge Harkness’ little threat to Mario, while not necessarily describing a formal legal process, may actually have teeth. Informal teeth, but not necessarily any less real.

12 Comments

Posted in Batman, civil rights, criminal procedure, immigration law

Nobody Foresees the Lizard

Posted on August 6, 2012 by | 30 comments

We received a great question about The Amazing Spider-Man and liability for the damage done by the villain.  Spoilers below!

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30 Comments

Posted in criminal law, movies, Spider-Man, torts

The Dark Knight Rises: Bankruptcy

Posted on August 1, 2012 by | 15 comments

Without going into too much detail above the fold (spoilers ahead!), a key plot point of The Dark Knight Rises concerns bankruptcy law.  Today we’re going to talk about a couple of aspects of that.

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15 Comments

Posted in bankruptcy, Batman, movies

The Dark Knight Rises III: Nuclear Shenanigans

Posted on July 30, 2012 by | 50 comments

Last week we mentioned that there are some… problems with the way the law is handled in The Dark Knight Rises. Specifically, the corporate angle doesn’t make any sense, and there are some real unresolved issues pertaining to Bane’s occupation of Gotham.

This time, we’re going to look at something mentioned by a few commenters, i.e., how the heck did Wayne Industries build a fusion reactor immediately below Gotham City?

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50 Comments

Posted in administrative law, Batman, movies