Sherlock: The Reichenbach Fall

Posted on February 13, 2012 by | 11 comments

Sherlock is the critically-acclaimed BBC adaptation of Arthur Conan Doyle’s classic Sherlock Holmes stories in a twenty-first-century setting. The latest episode, “The Reichenbach Fall,” is a re-telling of “The Final Problem,” in which Sherlock, battling with arch-nemesis Moriarty, plunges down the Reichenbach Falls, presumably to his death.  It is the final episode of the second season.

He didn’t die in the original story, of course (it isn’t a spoiler if it was published a century ago, people!), but the following will contain some pretty serious spoilers for “The Reichenbach Fall,” so you’ve been warned. Continue reading →

11 Comments

Posted in criminal law, television

Buffyverse Vampires and Criminal Liability

Posted on February 10, 2012 by | 78 comments

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

78 Comments

Posted in administrative law, criminal law, mailbag, television

Chronicle

Posted on February 8, 2012 by | 19 comments

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

Continue reading →

19 Comments

Posted in movies, torts

Breaking Bad: Landlord-Tenant Law

Posted on February 6, 2012 by | 13 comments

Breaking Bad is the award-winning AMC show about a high school chemistry teacher who, after being diagnosed with Stage III lung cancer, decides to provide for his family by cooking meth. Turns out he’s pretty damn good at the cooking part, but the rest of it is where the drama kicks in and why the show is now headed into its fifth season. Obviously, the core of the show involves doing things which are spectacularly illegal, and the show makes no bones about that. But in Episode 4 of the second season, “Down,” there’s a bit of landlord-tenant law that bears examining. Spoilers to follow. Continue reading →

13 Comments

Posted in contracts, criminal law, property law, television

Getting Rich with Superpowers, Part 2: Gambling

Posted on February 3, 2012 by | 31 comments

This is the second post in our series on how common superpowers might be used to make money in the short term.  Our first post was about insider trading, and today we discuss the arguably related field of gambling.  First a little legal background, then we’ll get to the powers.

I. The Law

Throughout this post we refer only to legal gambling; obviously illegal gambling is against the law, and moreover the courts will generally not enforce an illegal gambling contract.  See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”)

There are several ways in which cheating can run afoul of the law.  First, winnings “earned” via cheating have been held in some jurisdictions to be unenforceable (i.e. the losing party can recover their loss from the winner). See, e.g., Berman v. Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963).  Second, states that have legalized gambling have also enacted laws criminalizing cheating.  See, e.g., Nev. Rev. Stat. §§ 465.070, 465.083.  We’ll mostly focus on Nevada law, since it has a well-developed body of law regarding gambling and cheating (no surprise there!).

II. The Powers

There are several powers that could be used to facilitate gambling, including telepathy, empathy, X-ray vision, superhuman speed or dexterity, precognition, eidetic memory, time-travel, and outright probability manipulation.  The question is, which of these, if any, could be legal to use?   We’ll start with what may be the only power that is actually legal to use.

A. Eidetic Memory

Eidetic memory would be of great use to a card counter.  Card counting has been held to be skillful play, not cheating, and a casino that allows a card counter to play must pay the player his or her winnings absent some other fraud.  Chen v. Nevada State Gaming Control Board, 116 Nev. 282 (2000) (en banc).  On the other hand, no one has a right or property interest in gambling at a particular casino, and a casino can bar a suspected card counter from playing.  Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000).  Given that even a perfect card counter will require a hefty bank roll and a long stretch of play in order to realize a significant advantage, this approach, while legal, is far from a guaranteed thing.

B. Empathy

Empathy is where we begin to enter a grey area.  Arguably, reading someone’s emotions is akin to finding a gambler’s tells, and empathy is simply a more precise, direct way than, e.g., looking for facial cues or nervous tics.  Depending on how the power works, it might run into invasion of privacy problems, but some versions of the power (e.g. pheromone detection) likely wouldn’t as they make use of “broadcast” signals.  There is enough uncertainty left in reading an opponent’s emotions that it couldn’t be construed as knowing the outcome of the game, which sets empathy apart from many other powers.

C. Precognition and Time-Travel

Precognition and time-travel are, alas, probably a fraudulent act within Nev. Rev. Stat. § 465.070(5), which prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet, including past-posting and pressing bets.”

Now, the real crux of the matter is the meaning of the word “after.”  A precog clearly places a bet “after” acquiring knowledge of the outcome, but the issue is less clear for a time-traveler.

Suppose the time traveler leaves the present (t1) and goes to the future (t2) to learn the outcome of the game, then returns to the past (t0, even earlier than t1) to place the bet.  Has the time-traveler placed the bet “after” acquiring knowledge of the outcome?  Common sense says yes: from the perspective of the time-traveler, the bet was placed after the outcome was known.  The time-traveler could make the argument that, objectively, the bet was placed before the outcome was known, but believe it or not that level of semantic hair-splitting is frowned upon by judges.

Of course, as with Biff Tannen’s scheme in Back to the Future, Part II, proving that someone is cheating by traveling through time is a tough sell unless time-travelers are well-known to exist.

D. Telepathy and X-ray Vision

Telepathy and X-ray vision are where we really cross the line into cheating  because these powers violate the rules of the game.  There’s no meaningful distinction between peeking over a player’s shoulder and using X-ray vision to look at their hand, and telepathy presents similar problems as well as invasion of privacy issues.  This may well fall under Nev. Rev. Stat. § 465.083, which simply makes it unlawful for any person to cheat at any gambling game.  Somewhat surprisingly, this law has been held not to be unconstitutionally vague, as we’ll discuss in more detail in a moment.

Failing that, these powers also likely fall under § 465.070(2), which prohibits “[placing], [increasing] or [decreasing] a bet or … [determining] the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game or which is the subject of the bet.” In most games, reading an opponent’s mind or viewing their hand is a great example of “acquiring knowledge, not available to all players, … that affects the outcome of the game.”

E. Superhuman Speed or Dexterity, Probability Manipulation

Superhuman speed or dexterity could be used in games like craps, either to place the dice in a particular position after rolling them or to roll them such that they are guaranteed to end up in a particular position.  There are actually cases that deal with these tactics, which hold that they are a form of illegal cheating.  Skipper v. State, 110 Nev. 1031 (1994) (holding that law criminalizing cheating was not unconstitutionally vague as applied to “dice sliding” in craps).

Those same cases would also appear to apply to probability manipulation.  “A skilled dice slider such as [the defendant], surreptitiously and contrary to the rules of the game, alters the probable outcome of a throw and drastically increases the chances of winning certain types of bets on the craps table.”  Skipper, 110 Nev. at 1035 (emphasis added).  Even though someone who manipulates probability may not even touch the dice (instead betting on someone else’s throw) or may play a game like roulette, the same logic would seem to apply.

III. Conclusion

There do not seem to be very many superpowers that could be used to legally and efficiently make money via gambling.  Many of these methods are hard to prove (e.g. precognition, time-travel), but they are nonetheless probably illegal.  Of course, many superpowers could be used to win bets of an altogether different kind, for example Wolverine betting on himself in boxing matches in X-Men, but it’s hard to make really serious money that way without arousing suspicion: eventually people catch on that betting against you is a bad idea.  It may actually be easier for a superhero to make money legally via the stock market than via gambling.

31 Comments

Posted in contracts, torts

Aquaman’s Citizenship

Posted on February 1, 2012 by | 28 comments

We’ve written previously about Superman’s U.S. citizenship (and his brief flirtation with renouncing it), but he isn’t the only superhero with potential citizenship issues.  Believe it or not, Aquaman has troubles of his own, even if they aren’t addressed explicitly in the comics.  As astute reader Frank asked, “[DC New 52] Aquaman is half-American, on his father’s side. As a citizen, can he hold a title of nobility, namely “King of Atlantis,” in a foreign country?”  As the question implies, there are two issues here: Can Aquaman be King of Atlantis while remaining a U.S. citizen?  And can a U.S. citizen hold a foreign title of nobility?

I. Renunciation

As discussed previously, 8 U.S.C. § 1481 provides several ways in which someone can lose their U.S. citizenship, if they are done “with the intention of relinquishing United States nationality.”  In Aquaman’s case, subsection (a)(4)(A) is the most likely route to renunciation:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state

Since Aquaman is an Atlantean citizen, assuming the office of King of Atlantis would seem to be sufficient.  Strictly speaking, he would also have to do so with the intention of relinquishing United States nationality, but intent can be inferred from actions.  Perkins v. Elg, 99 F.2d 408, 412 (D.C. Cir. 1938) (“expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered”).  In fact, the State Department considers accepting a policy-level position in a foreign government to be prima facie evidence of intent to relinquish citizenship.  The fact that Aquaman remains a citizen of Atlantis means that he is not at risk of becoming stateless, which is one of the major policy reasons prohibiting the involuntary imposition of expatriation.  Tropp v. Dulles, 356 U.S. 86 (1958).

Notably, Aquaman later abdicated the throne to be a full-time superhero based in Boston.  Could this abdication signal that he never intended to relinquish his American citizenship?  Probably not.  “After an American citizen has performed an overt act which spells expatriation under the wording of the statute he cannot preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.”  Grassi v. Acheson, 101 F.Supp. 431, 432 (D.D.C. 1951); see also Terrazas v. Muskie, 494 F.Supp. 1017, 1020 (N.D.Ill. 1980) (“plaintiff’s struggle to retain his citizenship is likely evidence of his realization of the gravity of his earlier decision to relinquish his citizenship”).

So is there any hope for Aquaman?  There is a slim thread.  Any doubts or ambiguities in these kinds of cases must be resolved in favor of retaining citizenship.  Dulles v. Katamoto, 256 F.2d 545, 548 (9th Cir. 1958) (“in construing § 401(d) as to such a dual national … the facts and the law should be construed as far as reasonably possible in favor of the citizen.”); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958) (“when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence”).  Unfortunately for him, the only issue is whether Aquaman intended to relinquish his citizenship: the fact that he voluntarily assumed the throne of Atlantis is established beyond doubt.

II. Titles of Nobility

The Title of Nobility Clause of the U.S. Constitution forbids both the federal government and the states from granting titles of nobility.  U.S. Const. art. 1 § 9 cl. 8; U.S. Const. art. 1 § 10 cl. 1.  Furthermore, “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  But these clauses do not prohibit private citizens from holding such titles,  so Aquaman is in the clear in that regard.  He could hold a title of nobility as long as he did not “accept, serve in, or perform the duties of any office, post, or employment under the government of” Atlantis.

By the by, the reason why U.S. citizens are granted honorary knighthoods rather than proper ones (e.g. Bill Gates, who is a KBE but may not use the title “Sir”) is not because of the Title of Nobility Clause but rather because proper knighthoods are only granted to British subjects.

There is a proposed constitutional amendment to prohibit private citizens from holding titles of nobility, on pain of expatriation, but it has not been ratified by three-fourths of the states.  Interestingly, the twelve ratifications it has received so far still “count,” and so if 28 more states ratified it then it would become part of the Constitution.  Such a long period between proposal and adoption is not unheard of: The Twenty-Seventh (and currently last) Amendment was adopted 203 years after its proposal in 1788.

III. Conclusion

Once again Aquaman has been overshadowed by better-known superheroes, even when it comes to fictional legal troubles.  Where was the Fox News outrage that the former King of Atlantis was allowed to roam the streets of Boston without being deported?  Where are the Republican candidates on this issue?  Superman merely threatened to renounce his citizenship in a non-canon side-story, whereas Aquaman actually went and did it, as far as the law is concerned, yet there is only silence.  Aquaman just can’t catch a break.

28 Comments

Posted in constitutional law, international law, mailbag

Preacher: Salvation

Posted on January 30, 2012 by | 10 comments

We already had one fairly popular post on Preacher, exploring the legal ramifications of Jesse’s use of The Word. Here we’re going to talk about something a little more down-to-earth: Jesse’s installation as the sheriff of Salvation, Texas. Or possibly his assumption of said office. The legality of the job is one of the things at issue in the story itself. This time we’re going to be looking at the implications of improper inauguration for the state actor doctrine. Continue reading →

10 Comments

Posted in constitutional law, criminal law

NIPR: Midday Matters (Updated)

Posted on January 27, 2012 by | 6 comments

Ryan and James appeared on Northeast Indiana Public Radio 89.1FM’s Midday Matters on January 27, 2012. If you missed the broadcast, you can listen to the interview here (mp3).

6 Comments

Posted in interviews and podcasts

Getting Rich with Superpowers, Part 1: Insider Trading

Posted on January 25, 2012 by | 38 comments

We’ve previously talked about how immortal beings might find it difficult to amass significant wealth simply by virtue of living a long time.  This post marks the first in a series on how other common superpowers might be used to make money in the short term.

One way to make (or lose) a lot of money is via the stock market, and several superpowers lend themselves to taking advantage of the market: telepathy, enhanced senses, invisibility, and time travel, just to name a view.  Each of these could be used to come across valuable information without necessarily breaking any other laws (e.g. without trespassing).  For example, someone with Superman-level enhanced hearing could easily overhear a boardroom conversation, and an invisible person could similarly overhear sensitive conversations in public places. The question, then, is whether using any of this information would run afoul of insider trading laws.

(Note: do not try any of this at home, at least without consulting a competent attorney in your jurisdiction.)

I. Insider Trading

There are three major theories of insider trading liability.  First, one cannot trade on material, nonpublic information if one owes a fiduciary duty  to other traders in the marketplace. Chiarella v. United States, 445 U.S. 222 (1980).  This covers the most common types of insider trading: corporate insiders who trade on confidential information or who give confidential information to an outsider in breach of a fiduciary duty.  See also Dirks v. S.E.C., 463 U.S. 646 (1983).

The second theory is “misappropriation.”  “The misappropriation theory holds that a person commits fraud “in connection with” a securities transaction, and thereby violates § 10(b) and Rule 10b–5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information.”  United States v. O’Hagan, 521 U.S. 642, 652 (1997).  This, then, covers the case in which the source of the information is a patsy rather than complicit.  It still requires that the misappropriator owe the source a fiduciary duty, however.

The first two theories are based on applying common law theories of fraud to the SEC rule against fraudulent trading.  The third theory is based on Rule 14e-3, which specifically forbids a certain type of insider trading.  “Rule 14e-3 prohibits any person who is in possession of material nonpublic information relating to the commencement of a tender offer, acquired directly or indirectly from either the bidder or the target company, from trading in target company securities. It also makes unlawful passing on any such information where it is reasonably forseeable that the recipient will trade.”  Donald C. Langevoort, 18 Insider Trading Regulation, Enforcement, and Prevention § 1:10.  On the one hand 14e-3 is broad because there is no requirement of a fiduciary duty, but on the other hand it is narrow because it only applies to tender offers (e.g. mergers and acquisitions).

So, now that we have a rough idea of what constitutes insider trading, let’s see if any common superpowers can allow someone to acquire material, nonpublic information without running afoul of any of these theories.

II. Superpowered Reconnaissance

The first thing to do is to forget about using insider information to take advantage of a potential merger or acquisition.  Rule 14e-3 would almost certainly apply, so our hero (or villain) will have to stick to other kinds of valuable information (e.g. an R&D breakthrough or a pending product recall), and that’s the context we’ll assume for the rest of the post.

In general, merely overhearing something (e.g. a conversation between company employees) in a public space is not a violation under the first two theories because there is no fiduciary duty being broken: the recipient owes the company and its shareholders no duty, and the employees aren’t improperly tipping off the recipient.  So enhanced senses and invisibility would seem to be a good fit.

Telepathy is more problematic.  As we’ve discussed before, telepathy may run afoul of a person’s right to privacy.  Would discovering information about a company be highly offensive to a reasonable person?  Would it matter if the victim was a regular employee of a giant company or an emotionally-invested founder of a small business?  It’s hard to say how a jury would react.  It is not clear to me whether this kind of privacy violation would be sufficient to trigger insider trading laws, however.  The law prohibits the use of deception to acquire insider information, and telepathy could qualify, though it seems a bit strained. S.E.C. v. Dorozhko, 574 F.3d 42 (2d Cir. 2009) (holding that computer hacking to obtain insider information may be “deceptive device or contrivance” prohibited by Rule 10(b) and Rule 10(b)-5).

Time travel seems to be the cleanest of all: the superpowered schemer could simply wait until the information was public, then travel back in time and use it profitably.  This suggests the scheme in Primer might have been legal.

The previously mentioned prohibition against deception suggests that shapeshifting, psychic manipulation, and other forms of trickery wouldn’t work.

III. Conclusion

With the right superpowers and a little luck it may be possible to profit from the stock market without running afoul of insider trading laws.  Has this ever been tried in the comics?

38 Comments

Posted in administrative law, criminal law, securities law, torts

Law and the Multiverse Retcon # 4: Batman: Noel (Revisited)

Posted on January 23, 2012 by | 10 comments

On Christmas Day, 2011, we discussed Batman: Noel, mentioning that one of the issues present was actually the subject of a then-pending Supreme Court Case, U.S. v. Jones.

Well, the Court has just handed down its opinion in that case. SCOTUSblog has an excellent analysis of the opinion, which was only unanimous to the extent that all the justices agreed with the appellee’s contention that the use of this wireless GPS device to track his vehicle violated his Fourth Amendment rights.

The justices disagreed, however, on exactly what “Fourth Amendment rights” meant in this case. The majority opinion (Scalia, Roberts, Kennedy, Thomas, Sotomayor) was the narrowest and seems to mostly stand for the proposition that law enforcement agencies would be well advised to get a warrant before doing this sort of thing, but it stops short of holding that a warrant is categorically necessary. They essentially held that the physical intrusion of the device on the car was a “search” but punted on the use of the technology. The four-justice concurring opinion (Alito, Ginsburg, Breyer, Kagan), wanted to talk more about whether or not there was a reasonable expectation of privacy with respect to the use of GPS tracking and suggested that the longer the tracking goes on, the more of an expectation there is. Sotomayor also filed her own concurring opinion which actually criticizes the majority opinion—which she joined—suggesting that if the cops try to get too funky with warrantless, wireless tracking, she may well side with the other bloc of justices and opt for a ban.

While we certainly didn’t predict how this was going to play out in terms of the justices voting patterns, this is basically what we predicted would happen overall.  As we said, “The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant.” So ultimately, the Court didn’t decide the former issue but suggested that the latter is probably true. At the very least, using a physical device attached to one’s person or property now constitutes a “search” under the Fourth Amendment.

So this isn’t precisely a “retcon” as much as it is an update. The original post suggested that Batman probably needed a warrant to use that tracer on Bob Cratchit, and today’s opinion in Jones says that this is correct.

10 Comments

Posted in Batman, constitutional law, criminal procedure, retcons