New York Comic Con Update

Posted on September 4, 2012 by | 2 comments

Ryan and I will be giving a talk about our upcoming book, The Law of Superheroes, at New York Comic Con at 5pm on Friday October 12th.  Single day tickets as well as multi-day passes are available.  We should have more information about the rest of the convention (e.g. book signings) soon.  We hope to see you there!

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Posted in conventions and talks

Labor Day 2012: Surrogates

Posted on September 3, 2012 by | 18 comments

Surrogates is the five-issue 2005-2006 graphic novel by Robert Venditti (author of The Homeland Directive, which we discussed about this time last year). It was made into a 2009 Bruce Willis movie. The basic premise is that sometime in the next ten-odd years, a company called Virtual Self, Inc., perfected the technology to permit people to operate what amount to robotic avatars. So instead of physically going to work, an operator can “link” to their “surrogate” body and drive their surrogate as if they were physically present.

This obviously has enormous social, economic, and political implications, and Venditti knows it. There’s a lot to look at here, but today we’re going to focus solely on the labor issues. Specifically, Vinditti suggests that surrogates would revolutionize gender and race relations and touches on (without explaining in great detail) the role of organized labor in the widespread adoption of surrogates. Continue reading →

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Posted in Uncategorized

Daredevil #17

Posted on August 31, 2012 by | 8 comments

Today’s post covers the latest issue of Daredevil, “Divide by Hero.”  Mark Waid’s run continues to be terrific, and this issue was particularly good.  Most of it is a flashback, so it’s a good issue to check out even if you haven’t been following the series (which you really should be).  A couple of legal issues stood out in this issue, including one involving my personal area of practice, patent law, which doesn’t come up terribly often in comics.  Minor spoilers ahead.

I. Invention Promotion Companies and Other Scams

Part of the flashback story involves a scientist, Elliot Pasko, who had been taken in by a company called Fortknight, which Foggy Nelson describes as “a predator corporation posing as a no-strings endowment fund.  They stake promising young inventors…then bury them with bogus ownership claims, patent infringement allegations, and worse whenever their ‘beneficiaries’ strike gold.”  As it turns out, there are quite a few scams aimed at inventors, though they usually don’t take this form.  Nonetheless, what Foggy describes could work.

The most common form of scam is the ‘invention promotion company.’  The United States Patent and Trademark Office has a useful page that details the common elements of these scams.  Basically they lure inventors with unwarranted promises of success at the Patent Office and easy money, when in reality they either deliver nothing or, at most, an often useless design patent that protects only the non-functional design of a thing.  The kinds of companies are a real problem, particularly for individual inventors, but Fortknight seems to be operating a different kind of scam.

I suspect that the way Fortknight’s scam would work is that the company would promise research funding, but hidden in the agreement would be an assignment of patent rights from the inventor to Fortknight.  Then, as soon as the research was far enough along to apply for a patent, Fortknight would pull the rug out from under the inventor, obtain a patent, and sue the inventor if he or she tried to continue their research elsewhere.  If an inventor assigns their rights, then they can be prevented from making, using, or selling their own invention just like anyone else.

As a side note (and as discussed in our review of Daredevil: Yellow), there’s no reason that Nelson & Murdock couldn’t take this case, since it involves patent litigation rather than practice before the United States Patent & Trademark Office.

II. Profit Sharing and Legal Ethics

Foggy took Pasko’s case under curious terms: “all the pro bono he required in exchange for ten percent of future profits.”  Now, pro bono doesn’t necessarily mean free; it can also mean working at a substantially reduced rate, but this isn’t pro bono work.  This is for-profit work (literally) that is effectively a kind of contingent fee, since if Pasko loses then there definitely won’t be any profits.  But is this kind of thing ethical?  The answer is a highly qualified yes.

In New York, “A lawyer may accept an equity interest in a client if the lawyer complies with the Rule of Professional Conduct governing business transactions with clients and the acceptance does not otherwise create a conflict for the lawyer or result in an excessive fee.”  NYSBA Opinion 913.  Entering into a business transaction with a client in this way brings with it several requirements, including that the transaction be fair, reasonable, and communicated in writing.  The client must also be advised of and be given a reasonable opportunity to seek independent legal advice regarding the transaction.  And the client must communicate his or her informed consent in writing.  Contingent fee arrangements likewise have their own rules, mostly to do with carefully explaining the nature of the fee agreement in writing.  See NY Rule 1.5(c).

Other jurisdictions have taken a similar approach.  See, e.g., LA County Bar Assoc. Formal Opinion No. 507; DC Bar Opinion 300.

I’ll admit that I was a bit surprised by this result.  I knew that lawyers could, under some circumstances, enter into business transactions with clients, and that lawyers could take contingent fees.  But I did not expect that the two could be ethically combined.  I would have thought that combining the risks involved would simply be too much and that ethics committees would opt for a bright line rule prohibiting the practice.

III. Conclusion

Daredevil doesn’t always get the law right, but it’s better than most comics on that score.  And despite my initial skepticism, it looks like it was right this time around as well.  Kudos to Mark Waid for combining accuracy and excellent storytelling.

8 Comments

Posted in intellectual property, legal ethics, patents

Under the Dome

Posted on August 29, 2012 by | 9 comments

Under the Dome is Stephen King’s 2009 novel about a small Maine town—Chester’s Mill, Maine, located approximately here—which is shut off from the outside world after an invisible, semi-permeable barrier slams down around it one October morning. It’s an extended (1,100 pages certainly counts as that) look at what happens to human society when it is completely isolated. If this is sounding a little like the setup for Lord of the Flies, there’s a reason for that. Turns out the how and why of the Dome aren’t really the point so much as what happens to the characters as a result.

There are two things we’re going to look at here. One has to do with martial law, the other with municipal government. There are some spoilers here. Continue reading →

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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!

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

Daredevil: Born Again

Posted on August 23, 2012 by | 4 comments

Today we have a quick legal ethics note from the classic 1986 Frank Miller Daredevil storyline, Born Again (which is available collected in trade paperback).  At the outset of the story, Wilson Fisk (aka the Kingpin) sets out to destroy Matt Murdock’s life.  One of the first steps is to get him disbarred.  To do this, Fisk frames him for bribing a witness to perjure himself (aka subornation of perjury).  A brilliant defense by Foggy Nelson keeps him out of prison, but Murdock nonetheless loses his license to practice law.  But how does that work?  Can a lawyer be ‘sentenced’ to losing their license?

The answer is ‘sort of, at least in New York.’  First, let’s take a closer look at the facts.

I. Bribery and Perjury

In New York, bribing a witness is a class D felony. N.Y. Penal Law § 215.00.  Subornation of perjury is not a separate offense, but rather the person doing the suborning is guilty of perjury by accomplice liability.  See Staff Comments of the Commission on Revision of the Penal Law. Revised Penal Law. 292-93 (1965).  First degree perjury (i.e. swearing falsely and making a material false statement as part of one’s testimony) is also a class D felony.  N.Y. Penal Law § 210.15.  Class D felonies are punishable by up to 7 years imprisonment with a mandatory minimum of at least one year, unless:

the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

However, it is not clear to me whether there was any mandatory minimum provision at all in 1986, and the court may have had discretion to sentence Murdock to probation only.  So that could explain why Murdock didn’t end up in prison despite what happens next.

II. Disbarment

As Fisk narrates, “Even as he hears the much-tempered verdict of the court that he will not face a prison sentence, as I had planned—that all he will lose is his license to practice law…whatever reactions he has are hidden—even, I suspect, from himself.”  So Murdock doesn’t receive a prison sentence, but he does lose his license.  But how could a criminal court do that?

This is a fair question.  Disbarment is not a criminal punishment per se.  In New York, for example, attorney discipline is ordinarily handled by the Appellate Division (i.e. the intermediate courts of appeal).  However, in New York, a felony conviction results in an automatic disbarment.  N.Y. Judiciary Law § 90(4)(a).  We discussed this  last year with regard to She-Hulk’s disbarment.  So while the trial court wouldn’t technically sentence Murdock to losing his license, a conviction on either felony count would result in immediate, automatic disbarment with no action from the Appellate Division necessary.  Since the court undoubtedly knew this would happen, it could take that into account when deciding not to sentence Murdock to prison.

III. Conclusion

The circumstances of Matt’s disbarment are a little odd, but it actually hangs together pretty well due to New York’s unusual felony disbarment rule.  Since Murdock loses his license right off the bat, there’s not a lot of legal issues in the rest of Born Again, but it’s a great story in its own right.

However, we will quibble with the fact that Matt is summoned to a grand jury hearing “and not as a witness” (i.e. as the defendant).  Lots of comic books get this wrong, so we’ll say it again in the hope that comic book authors won’t keep making the same mistake: grand jury hearings are secret.  There’s no judge, no public gallery, and the defendant (technically only a suspect at that point) is not present or represented by an attorney.  There’s just the prosecutor, a court reporter, the grand jury, and one witness at a time.  We know that means grand jury scenes sometimes have to be depicted without the main character present, but on the other hand “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted,” so we recommend not bothering.  Just assume that the grand jury handed down an indictment and move on to the actual trial.

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Posted in criminal law, criminal procedure, legal ethics

Manos: The Hands of Fate

Posted on August 20, 2012 by | 15 comments

No, really. We’re going to talk about Manos: The Hands of Fate, one of the worst movies ever made, with a rare 0% on Rotten Tomatoes. Even the title (“Hands: The Hands of Fate”) is terrible. The movie isn’t just bad, it’s downright incompetent. It might not even be possible to make a movie this bad anymore; two guys with an iPhone would have infinitely better production values.

The immediate reason for talking about this is that the guys from Rifftrax, i.e., the ones responsible for the absolutely classic MST3K episode featuring the movie, just did a live riffing of the movie on August 16, 2012. You should have been there. They’re doing Birdemic in October, just in time for Halloween. The way it works is that the three of them show up live in a theater—this time it was in Nashville—and the show is broadcast live to theaters around the country. It’s an enormously good time.

Anyway, believe it nor not, there is a very, very important legal issue to be discussed here. A legitimate one, one which has been the subject of some of the most significant U.S. Supreme Court decisions in the last fifty years. Remember the two teenagers making out in the convertible that kept getting busted by the movie’s Barney Fife equivalent? They represent a perfect opportunity to discuss loitering and its enforcement. There aren’t any spoilers here to speak of—it’s not like it’s possible to spoil this movie anyway—so here we go. Continue reading →

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Posted in civil rights, constitutional law, criminal law, movies

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

Hancock

Posted on August 15, 2012 by | 16 comments

Hancock is the 2008 superhero movie starring Will Smith and Charlize Theron about the interesting intersection of the superhero and the… homeless?

Or something like that. The movie is actually way more interesting than it has any right to be, not only for the obvious premise, i.e., a superhero who has to deal with property damage and people not being thrilled to see him, and the more mythological premise, which is a surprisingly creative take on the superhero concept. It also has the rather unusual benefit of not being an origin story. We first see Hancock passed out on a public bench, apparently mid-way through a multi-day drunk. We eventually learn his background, but it’s not the point of the movie.

But this being the blog that it is, we’re more interested in the former than the latter. Mythology is great and all, but we’re interested in the nitty, gritty, legal logistics. We’ll try to keep this mostly spoiler-free, but you have been warned.

I. Hancock Goes to Jail

There are an unknown impliedly large number of outstanding warrants for his arrest, only no one’s figured out how to do that, or to serve him with one of the hundreds of subpoenas he faces. As a plot point, Hancock voluntarily surrenders himself to the police. This is supposed to be a first step towards rehabilitating his image. And it’s probably what would need to happen for a superhero who has been acting outside the law before he could become “legit”.

The process is a bit abbreviated, as we basically just see Hancock go from a press statement at his surrender straight to jail. There are a few steps missing here, but with one exception, the process could go about as quickly as it seems to.

First, turning yourself into the police, even if you have an outstanding warrant, is not a ticket straight to jail. It is, at best, a ticket straight to a holding cell. In the United States, there’s a difference between “prison” and “jail”. “Prison”, which is where Hancock goes, is typically where you go after you’ve been convicted (or pled guilty to) a crime, and generally a felony. You need to be serving a sentence of at least a year. So the fact that Hancock ends up here before he’s even sentenced—he has a conversation about what his sentence is going to be after he’s in prison—is a mistake. He’d probably go to “jail” first, which is where you sit if you’re waiting to be tried or you’re serving a sentence of less than a year, often a misdemeanor conviction. Even people who are going to plead guilty to a felony don’t go to prison before that happens.

But it can happen pretty quickly. The movie doesn’t discuss exactly what charges Hancock is facing—nor does it deal with the civil side of things at all—but the DA has presumably got charges all drawn up. If, as in Hancock’s case, the defendant doesn’t intend to contest the charges, even a little, one can go from indictment to prison pretty quickly.

Still, it may well take a few days, even if everyone’s trying to speed things along. The issue of bail would then come up. Hancock would seem to be the very definition of a “flight risk”. But his lawyer, whom we don’t meet, could point out that if Hancock decided he wanted to leave, all the king’s horses and all the king’s men couldn’t do jack about it. He’s there because he wants to be. Bail is specifically and solely intended to create an incentive for defendants not to flee before trial. Hancock doesn’t have any money, so it’s not like it’s going to matter to him. And the fact that the cops couldn’t really arrest him even if they wanted to might be good reasons to just let him out on his own recognizance. Then again, because Hancock is cooperating, he may just have waived any request for bail, which would get him into jail immediately.

So other than the fact that Hancock seems to start serving a sentence before he even pleads guilty to anything, the process seems more-or-less okay. Most of the legal stuff happens off camera, but the results are mostly plausible.

II. Necessity

The other thing the movie does really well is show the limitations of the “necessity defense.” We discussed this in the context of Superman stealing a bunch of iron bars to shore up a burning chemical plant in March.  Necessity is often described as a “lesser of two evils” defense.  The basic idea is that there are many actions which are tortious or even criminal which can be “justified” by the circumstances.

But however conceived, necessity isn’t going to work for Hancock in most of the property damage claims that have been leveled against him. Why? Because he didn’t really have to cause the vast majority of the damage he causes. He doesn’t need to shatter the pavement when he takes off or lands. He doesn’t need to crash into and through buildings when he flies around. And when he saves Ray from the train? He totally didn’t need to smash his car onto three others or cause a train wreck because he was too lazy to get out of the way.

This is something that more superheroes should probably take into account. Hancock is an obvious example because he’s a jerk about it, but even characters like Superman and the X-Men would be well-advised to take note. Just because you’re “fighting crime” or whatever does not automatically justify property damage. Nor is the fact that lives are in danger. It can serve as a justification, but there has to be some proportionality and connection with the underlying crime-fighting. At root, property damage has to be reasonably necessary to preclude liability. So if there is any less-destructive way of accomplishing the goal, a superhero could potentially be liable for any damage he causes, particularly if the damage is out of proportion to the threat. The movie really picks up on that, and the writers deserve credit for it.

III. Other Issues

The movie also raises several other issues which we’ve talked about previously. For example, Hancock is apparently immortal. We’ve done several posts on the subject. We’ve also done quite a few posts on insurance for superhero-related property damage. This seems like a situation where there probably would be coverage because Hancock’s activities would be really hard to characterize as war, civil unrest, nuclear-related, terrorist, or any of the other common exclusions found in property insurance policies. We’ve even got one on superhero spouses, which is not entirely unrelated.

IV. Conclusion

If you didn’t catch the movie the first time around, you really should. It’s one of the more under-rated superhero movies out there, and one of the very few that isn’t connected to either Marvel or DC. Its take on the relationship of superheroes to society is refreshing, and its mythology is compelling. It’s not a perfect movie, and the tone shifts rather abruptly in places, but in a genre that’s given us Green Lantern and Electra, it more than holds its own.

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Posted in criminal law, criminal procedure, movies

2012 ABA Journal Blawg 100 Nominations

Posted on August 13, 2012 by | Leave a comment

Last year we were honored to be named one of the ABA Journal’s top 100 legal blogs.  The Journal is now accepting nominations for this year’s awards.  If you are a lawyer, law professor, or a law student, we invite you to consider nominating Law and the Multiverse.

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Posted in Uncategorized