Category Archives: Superman

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

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

Hi Superman, I’m A Lawyer

Posted on July 20, 2012 by | 3 comments

While we work on our next post, we thought you might enjoy this excellent (and exhaustive) law review article by William A. Hilyerd: Hi Superman, I’m A Lawyer:  A Guide To Attorneys (and Other Legal Professionals) Portrayed In American Comic Books, 15 Widener L. Rev. 159 (2009).  While there are a lot of law review articles discussing legal issues surrounding the comic book business (e.g. the ownership of characters such as Superman), there are very few law review articles that consider the actual content of comic books.

We should also take this opportunity to thank Prof. Hilyerd; his article pointed us to the Fordham Intellectual Property, Media, and Entertainment Law Journal’s citation format for comics (published as Britton Payne, Comic Book Legal Citation Format, 16 Fordham Intell. Prop. Media & Ent. L.J. 1017 (2006)), which we have used in our upcoming book.

3 Comments

Posted in Superman

The Day Superman Broke the Law?

Posted on April 25, 2012 by | 10 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.)

Fantom Comics has just launched a new site for comics commentary and criticism called Subculture for the Cultured, and we’re proud to announce that we will be contributing a monthly column alongside Ecocomics, The Patron Saint of Superheroes, and many other fantastic blogs.  Our inaugural column discusses a classic Silver Age Superman story, “The Day Superman Broke the Law” (reprinted in Showcase Presents: Superman, Vol. 3)  After the surprisingly strong reader reaction to our recent suggestion that Peter Parker may not have been entirely on the level in his dealings with the Daily Bugle, we think this one will go over a bit better.  So head over to SftC and check it out!

10 Comments

Posted in criminal law, sftc columns, Superman

Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

Posted on March 26, 2012 by | 39 comments

The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.

Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods. Continue reading →

39 Comments

Posted in criminal law, insurance, superheroes, Superman, torts

Superman, Duels, and Affray

Posted on March 22, 2012 by | 61 comments

Today we take a step back in time both in comic book history and the law.  While reading some classic Silver Age Superman comics, I found Superman #153, which contains a couple of great stories: “The Day Superman Broke the Law!” and “The Town of Supermen!”  Today’s post is about the second of these; don’t worry, though, we have a post planned for the first one.

I. The Set-up

The DC Wiki article has a good synopsis of the plot of “The Town of Supermen!”  but here’s the executive summary: A group of Kryptonian criminals escape the Phantom Zone and set up in the western ghost town of Deadwood Gulch, where they challenge Superman to a fight using Phantom Zone projector guns.  Superman accepts the challenge and wins by melting their guns with his heat vision and sending the criminals back to the Phantom Zone.

You might be wondering, “well, that sounds like standard Silver Age silliness, but what’s the legal issue?”  It turns out there are several, including some that involve old common law crimes with goofy names, which are always fun to talk about.

Note that the location of “Deadwood Gulch” is not specified in the story, so I refer to the law of various states in this post.

II. Dueling

One might guess, as I initially did, that the problem here is that Superman wasn’t acting in self-defense but rather voluntarily engaged in a duel.  It’s true that he wasn’t acting in self-defense or defense of others (the Kryptonians hadn’t directly threatened anyone yet), but in the eyes of the law this wasn’t a duel, despite Superman calling it “a showdown duel”:

The word “duel” bears a fixed, definite signification, not only colloquially, but juridically. Webster’s Dictionary defines a “duel” as a “combat between two persons, fought with deadly weapons, by agreement.” This definition is, as stated, the common—in fact, we may truthfully say the universal—understanding of the word. It indeed, is its intrinsic signification, and as so defined has been invariably adopted and used in the law and followed by the courts.

People v. Morales, 77 Cal.App. 483, 487-88 (1926).  Also see, e.g., Colo. Rev. Stats. § 18-13-104(2) (“Persons who by agreement engage in a fight with deadly weapons, whether in a public or private place, commit dueling, which is a class 4 felony.”).

In this case the parties used Phantom Zone projector guns, which certainly aren’t deadly weapons.  In fact, they wouldn’t even necessarily qualify as firearms in many jurisdictions, which avoids a lot of “criminal use of a firearm” type offenses.  See, e.g, Cal. Penal Code § 16520(a) (“As used in this part, “firearm” means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”).

As is often the case in the criminal law, the lack of one essential element of a crime doesn’t necessarily mean the act is legal.  Instead, it’s just a different crime, usually a lesser one.  In this case, the lack of deadly weapons turns it from a duel into an affray.

III. Affray

Affray is a very old common law offense, dating back to the late 15th century or so.  In fact, it’s so old that it originated from a French word, effrayer, meaning “to affright,” back when court business was still conducted in French following the Norman Conquest. See State v. Huntly, 25 N.C. 418, 421 (1843).  (Etymological side-note: the word “afraid” is the past-participle of affray and is essentially the only surviving remnant of the word in everyday English.)  As Edward Coke defined it in 1669:

But albeit upon the single combate no death ensue nor blood drawn, yet the very combate for revenge is an affray, and a great breach of the kings peace, an affright and terrour to the kings subjects, and is to be punished by fine and imprisonment … An affray is a publique offence to the terrour of the kings subjects, and is an English word, and so called, because it affrighteth and maketh men afraid …

Despite these ancient origins, affray is still very much alive in many US jurisdictions.  See, e.g, Hickman v. State, 193 Md.App. 238 (2010) (“we hold that common law affray continues to be a viable offense in the State of Maryland”); In re May, 357 N.C. 423 (2003); D.J. v. State, 651 So.2d 1255 (Fla. App. 1995).

As the court in May observed, “the essential elements of affray have proved remarkably durable, surviving through the ages without substantive change. …  An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public.”  In re May, 357 N.C. at 426.

That definition fits this case quite well. The fight was between Superman and eight Kryptonians, which is two or more people.  It took place on the main street of Dry Gulch, which is certainly a public place.  And the fight terrorized “the public,” namely Lois Lane, Perry White, and Jimmy Olsen, who made comments such as “I–I c-can’t look!”, “Jeepers! How can even Superman beat eight super-powerful foes to the draw?”, and “Poor Superman is doomed! *sob*”

So it looks like Superman may have broken the law by consenting to an affray rather than fleeing the scene, contacting the authorities, or waiting until self-defense or defense-of-others were available defenses.

IV. Conclusion

I suspect Jerry Siegel intended for the Phantom Zone projector guns to be both a way to dispose of the Kryptonian criminals at the end of the story and a way to make the fight non-lethal, fitting with Superman’s Silver Age morality.  Unfortunately, it was still a crime, albeit probably a less serious one than actual dueling.  This has implications far beyond this obscure story, however.  Affray, dueling, and related offenses could apply to many pre-arranged, public fights between superheros and supervillains.  That kind of open confrontation is much harder to legally justify than the standard self-defense, defense-of-others, and lawful arrest scenarios.

61 Comments

Posted in criminal law, Superman

Superman, Kryptonite, and Treason

Posted on March 7, 2012 by | 31 comments

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

31 Comments

Posted in Batman, constitutional law, criminal law, mailbag, Superman

All-Star Superman I: Criminal Liability for Lex Luthor

Posted on November 14, 2011 by | 24 comments

All-Star Superman is the non-canonical, bi-monthly limited Superman series written by Grant Morrison and drawn by Frank Quitely which ran from January 2006 to October 2008. It’s the second title published by DC’s All-Star imprint, designed to let authors take a new run at old heroes by freeing them from the constrictions of continuity, both retrospective and prospective, similar to the Marvel Ultimate series. While All-Star Batman and Robin the Boy Wonder was rather poorly received, All-Star Superman is generally regarded as a successful and interesting take on Superman. One can say without offering much of a spoiler that the whole premise of the series is that Superman learns he is terminally ill and sets about setting his affairs in order before his impending death, setting the scene for a rather more poignant and thoughtful set of stories than one would normally expect from the Man of Steel. It also presents a pair of related legal issues which we’ll consider here: is Lex Luthor criminally liable for Superman’s death, and even if he were, how would one go about prosecuting something like that? This time we’re going to look at the first issue, saving the second for another post. Continue reading →

24 Comments

Posted in criminal law, Lex Luthor, Superman

Superman Returns

Posted on August 17, 2011 by | 27 comments

Superman Returns was a pretty good movie (though hopefully the Man of Steel reboot will be an improvement).  The legal issues the movie raises are quite a bit different from our usual crime & torts fare, which is a nice change of pace.  Spoilers inside:

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