Category Archives: Uncategorized

Contagion is about an outbreak of a new kind of flu virus, highly contagious, with a mortality rate between 20-30%. It’s being received quite well and is definitely worth a viewing. One has to believe that the producers deliberately chose the tenth anniversary of Sept. 11, 2001 for its release, and it’s not a bad thing to see in that context. We’ll try to avoid spoilers here–you can probably already guess that lots of people die–but there are really some quite interesting legal questions to be discussed.

I. Police Power and Public Health

Perhaps the biggest question is the extent to which state and federal governments can impose drastic restrictions on civilian life to prevent the spread of the virus. It isn’t exactly clear from the film which government is imposing things like curfews, but suffice it to say that while the federal government would have some difficulty doing this, there is absolutely no question that state governments can.

The question has to do with so-called “police power“. The term has to do with the ability of a government to “regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants.” The federal government, under current constitutional jurisprudence, does not have general police power, as the Constitution does not provide for it and the Tenth Amendment reserves all powers not granted to the federal government to the states and the people. Granted, the federal government has been eating away at the Tenth Amendment for the better part of two hundred years, particularly since the 1930s, but the fact remains that compared to other national governments, the United States federal government is still one of remarkably limited powers. It cannot really regulate traffic, cannot prosecute or punish most crimes, and has remarkably little ability to impose and enforce public health regulations, the FDA notwithstanding.

But the states have no such limitations. If a governor decides he wants to impose a curfew, as long as he can point to some reason having to do with public health and/or safety which would justify such a regulation, he can probably do it. Regulations to protect public “morals” are somewhat out of favor–though they certainly still exist–but regulations to protect public health and safety are subject to very little scrutiny, provided the state can cogently describe the danger in view. So the scenes showing the Centers for Disease Control and Prevention, a federal agency, interfacing with state public health departments is quite accurate. There might be some questions about whether the CDC–or FEMA, or any other agency–could simply commandeer something like a stadium to contain an epidemic, there is absolutely no question that they could cooperate with local authorities in getting that done. Indeed, many local authorities look to federal agencies for assistance in coordinating and implementing their responses to disasters. The aftermath of hurricane Katrina caused a significant black eye for FEMA, but no small part of the blame there lies with the reaction, or lack thereof, of the Blanco administration. Really, the lack of coordination between state and federal agencies was a significant part of the problem there.

In short, the way Contagion portrays the cooperation between federal and state agencies is accurate both in its display of federalism at work but also in the turf wars and other political wrangling that goes along with any attempt by such agencies to work together.

II. Liability of Bloggers/Journalists for Misinformation

Then there’s the issue of Jude Law’s character, a conspiracy-minded blogger who believes that the disease is treatable with forsythia. He attacks the CDC for saying a vaccine is needed and then discourages people from taking the vaccine when it is developed, alleging that it is a fraud perpetuated by the medical establishment for the benefit of big pharma.

Turns out he’s 1) completely full of it, and 2) making a mint by colluding with a hedge fund manager who invests in the companies producing forsythia. Law’s character is probably based on real-life vaccine denialists, including Andrew Wakefield and Gary Null, both of whom have been exposed as outright frauds but whose misinformation is probably responsible for the recent measles outbreaks. At the end of the movie, the authorities appear to arrest him for his role in the disaster, though it’s not entirely clear for what.

This may actually represent some wishful thinking on the part of the producers. Wakefield and Null are notorious for their flaunting of the authorities’ position on vaccination, but rather than being prosecuted or sued, Wakefield has actually brought a libel case against publications criticizing him. The litigation was dropped and he was forced to pay the defendants’ legal costs, but he remains otherwise unpunished for his actions. But if Wakefield, Null, or someone else were involved in resisting attempts to control a truly serious epidemic, it’s plausible that the government would look a little more closely at their activities.

The question is whether the First Amendment would protect them, and that’s an open question, which is largely why no action has been taken thus far. But it turns out that sedition, i.e. speech deemed to promote insurrection against the established order, is still a viable charge and arguably quite fitting. Telling people not to get their kids immunized for fear of autism is one thing, but though the damage to human lives is real, it doesn’t pose an existential threat to society. Telling people not to get immunized against a potentially civilization-ending disease is something else entirely, particularly when vaccinations are seemingly mandated and tracked by the government. It seems entirely plausible that Law’s character could be subject to civil liability too, both for libel against the manufacturers and for injuries to those people who believed him.

III. Conclusion

Those are just two of the main issues we spotted in Contagion, but the film on the whole gets very good marks for its depiction of how the government would likely respond to such an event. Someone did their homework.

Well thank heaven that’s over. Continue reading →

Nine down, one to go. At this point, we’re done discussing the plausibility of this thing. Continue reading →

The story continues. More plot development this week than last week, but we’re starting to go a bit off the rails in terms of legal analysis. One of the basic premises of the Law and the Multiverse project is to apply existing, real-world law to fictional settings that are like reality unless noted. Continue reading →

The Homeland Directive is a 2011 graphic novel by Robert Venditti and Mike Huddleston, put out by Top Shelf Productions. It’s something of a political and medical thriller and doesn’t involve superheroes at all, so it’s a little different from our normal fare around here, but it’s a strong offering by a smaller publisher, so it’s definitely worth a look. We’re leaving the evaluation of the story and art to others, as normal, focusing instead on the legal aspects of the plot. Spoilers inside. Continue reading →

If we may be allowed a moment of rank self-indulgence: The American Bar Association is taking nominations for the 2011 ABA Blawg 100.  If you’re a lawyer or a law student, we invite you to consider nominating Law and the Multiverse.

Not a whole lot to discuss this week. The whole “concentration camp” this is obviously designed to provoke outrage, but somehow fails to do so, mostly because there doesn’t seem to be any particular reason for them. I mean, say what you like about the tenets of National Socialism, at least it’s an ethos. Here, we’ve got a situation where ovens for burning people alive are put into place on less than a week’s notice. Color us unconvinced.

In any case, there’s also the issue of whether it makes sense that the PhiCorp buildup could go unnoticed, even by the company’s own executives, for the twenty years or more that the show suggests is in view. Continue reading →

So it’s come out that Superman will apparently be renouncing his United States citizenship in an upcoming Action Comics. This has generated a certain amount of buzz and sent people to this post from back in December.

But renunciation is a slightly different question, and one worth talking about. Turns out that you can, in fact, renounce your citizenship. 8 U.S.C. § 1481 governs the voluntary renunciation of citizenship through a variety of ways, e.g. taking up arms with a foreign government or committing treason, but also by simply making a statement to that effect to an appropriate diplomatic officer. It’s not nearly as hard as it might be. The State Department actually has a page on it.

But Superman renouncing his citizenship is a little more complicated than you or I doing so. At one point, he was an honorary citizen of every country in the world–which would seem to alleviate a lot of his justification for doing so now–but that may have been pre-Crisis, so its current canonicity is open to question. More than that though, what effect, if any, does Superman’s renunciation have on Clark Kent’s citizenship? Now we start to run into some of the problems of maintaining a dual and/or secret identity. We’ve talked about this at some length here and here. Kent is just a regular guy as far as anybody can tell. Not only does it seem a bit hypocritical to renounce citizenship with the persona that isn’t actually tied to a permanent address while maintaining one’s mundane existence, but flipping back and forth between the two could be problematic, not only logistically, but in a kind of “now you see it, now you don’t” kind of thing with legal rights, duties, and privileges.

All in all, it should be fun to see where DC intends to go with this in and of itself, but it’ll be even more fun to see if they get the legal aspects right.

Time to hit up your local comic book store…

The Marvel Civil War event of 2006-2007 is a story which is perhaps the most sustained look at the legal environment of a comic book world to date. For those who aren’t familiar with it, let’s just say the event was… controversial. As such, it is a natural topic for Law and the Multiverse. We’re going to start out by looking at some of the more “meta” issues of the event, i.e. the difficulties that can arise when dealing with real law in more than a passing way in fictional worlds.

I. Common law systems and precedent

The issue here is that legal systems, particularly common law systems based on case law and precedent, develop naturally with events. Legislation is usually slow and sporadic, so frequently the courts are where new factual scenarios are tested out. The courts apply existing law to new factual scenarios all the time, and in a common law system the result is often new law.

The problem here is that even allowing for retcons and comic book time, by the time Civil War hit the Marvel Universe had existed for decades. The legal system doesn’t move quickly, and it’s plausible that Congress might not have taken any action to regulate superheroes until then, but it’s significantly less plausible for the courts not to have taken notice. Someone was going to try to sue Iron Man, the X-Men, the Fantastic Four, or any number of wealthy supervillains at some point, quite possibly subrogating insurance companies. These cases would create a body of superhuman/metahuman law.

But no such body of law is in evidence. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006. Heck, many lawyers don’t really like citing cases more than about twenty years old, simply because the law develops quickly enough to make most cases older than that of suspect value. So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic, particularly because the legal system would have had a chance to deal with many of these issues individually over time rather than trying to deal with it all at once via legislation. There’s messiness there that hurts the internal coherence of the story.

II. Legal drafting and continuity

But perhaps the biggest problem is that the Marvel bullpen never really seems to have decided 1) whether or not the Act was a good thing (Millar seems to have thought so, but a lot of the other writers seem to have other opinions. See Amazing Spider-Man # 530 for a truly lovely meta-textual spat), but more importantly 2) what the Act actually says.

Because believe it or not, what a given law actually says makes a big difference.  Most judges are pretty big on deferring to the legislature, and they do that by paying very close attention to exactly how a law is worded.  Similarly, the executive branch has to follow wording of the laws: if a bill says that it will be enforced by Agency X, then the President can’t decide to have Agency Y do it instead.  This is one reason lobbyists spend their money getting single paragraphs inserted into bills and why it’s so scary that our elected officials on both sides of the aisle tend to vote on bills they have absolutely no intention of reading.

In this particular case, it makes a huge difference both for the motivation of the characters and for the ultimate moral of the story as to whether the Act requires superhumans to go public or not, whether they are required to be federal employees or not, whether a super-powered individual who promises not to use their powers is required to register, etc. All of these make a huge difference and are hotly debated among the characters, which makes the whole thing feel more like the health care debate before the law was passed rather than any two sides discussing something which is already law, i.e. the disagreements often read like they’re about what ought to be, not about what is. This is kind of hard to avoid in fiction, particularly speculative fiction written by over half a dozen authors, but a little editorial discipline could have made the whole thing a lot more compelling.

For example: in What If? Civil War, the writers examine what would have happened if Tony Stark had been honest with Captain America at the beginning of the conflict instead of using treachery. The suggestion is that Cap would have agreed to become the head of the executive agency in charge of superhuman registration instead of Stark, and the difference in personal leadership would have made a big difference in the outcome. This is plausible enough; cabinet-level officials can and do have huge effects on the activities of executive agencies. But there isn’t that much indication in the canon Civil War stories that this is how the law was supposed to be implemented. The main Civil War stories basically make it look like it’s largely a S.H.I.E.L.D. operation with support from law enforcement and the military, not the creation of an entirely new agency.

More generally speaking, this is probably why most speculative fiction doesn’t spend a lot of time working out fictional worlds’ legal systems to any great level of detail, i.e. the devil is in the details, and if readers want extended discussion of the niceties of statutory interpretation and administrative law they can go to law school. Any sufficiently detailed legal system is going to take so much time and space to explain that the authors would never get around to telling an actual story. So while it’s disappointing that the Marvel authors didn’t make some effort at coming up with at least the basics of what the SHRA was supposed to do, one can see why they might have chosen not to. And one can also see why tangential interaction with the law, particularly for comic effect, can be a lot more effective than an attempt to deeply integrate the law as a plot device in speculative fiction. It’s hard enough to do in realistic fiction.

III. Conclusion

Hopefully, that lays out something of the groundwork and fundamental meta-type issues with the Marvel Civil War event. We’ll take a closer look at the actual stories in future posts.

We wanted to take a moment to let you, our readers, give us some feedback about what kind of posts you would like to see on the blog.  There are three polls.  If you have any questions, comments, or other feedback, please drop us a line in the comments to this post or send us an email.

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Thanks for voting, and don’t miss today’s post about Smallville right below this post!