Daredevil: The Trial of the Century Part II

Posted on May 11, 2011 by | 20 comments

For the first part of our series on this Daredevil storyline we discussed the charges against Daredevil’s client and evidentiary procedural issues.  This post will address a variety of issues and observations about the trial.  We’ll begin with evidence gathering.  As with the prior post, spoilers follow.

I. Evidence Gathering by the Defense

The defense team hires Heroes for Hire to track down and interrogate the gang that actually committed the murder.  Apart from entering the house by busting in the door, this isn’t particularly unusual.  Although the defense can use the criminal version of discovery to obtain a wealth of information from the police and prosecution (see, e.g., Fed. R. Crim. P. 16), a criminal defendant can’t direct the police investigation.  If the police don’t want to follow a particular lead or theory, that’s within their discretion.  As a result, it is common for criminal defendants to hire investigators, including expert witnesses and more traditional private investigators.

II. Legal Research

This storyline has the first conventional legal research scene we’ve encountered on the blog.  It’s true that the She-Hulk’s law firm (Goodman, Lieber, Kurtzberg & Holliway) maintains a law library, but in a bit of Fourth Wall-stretching, the library consists of comic books, which in the Marvel universe are a legally admissible record of the activities of Marvel superheroes and supervillains.

By contrast, the law library at the offices of Murdock and Nelson is pretty typical, if a bit old-fashioned even by 2002 standards.  Although there is a laptop in the scene, most of the work seems to have been done using printed sources.  There’s even the classic Wall O’ Case Reporters (here’s a real-life example), which you might recognize as a common background in law firm advertisements.

These days, most attorneys use electronic sources for the majority of their research.  The two main legal database companies are Westlaw (part of Thomson Reuters) and LexisNexis (part of Reed Elsevier).  Both are expensive, but they’re cheaper than maintaining an up-to-date print library.  Case reporter and statute book subscriptions aren’t cheap.  For example, a not-quite-complete set of federal case reporters costs about $44,000 plus another $2,400 per month to keep them up to date.  It would be much cheaper for Murdock and Nelson to switch to electronic databases.

One tiny nitpick: when listing potential cases to cite, Nelson offers Illinois v. Steve Rogers and Utah v. Banner as possibilities.  Those would actually be People v. Rogers and State v. Banner.  It’s possible that Nelson was indicating a particular case by giving the state name, but he also lists People v. Tony Stark, and we find it hard to believe that Stark has only been a defendant in one criminal case.

III. Witness Examination

There are two issues we’d like to address with regard to witness examination: objections and the examination procedure itself.

On multiple occasions during the trial the prosecution and the defense object to questions asked by the other side.  Like countless other fictional courtroom scenes, the attorneys simply say “objection,” the judge says “sustained,” and that’s that.  In reality, a party must give a brief reason for the objection (e.g. “objection, hearsay”).  A judge may allow an objection without an explanation, but if the judge overrules the objection then the party’s failure to state the basis for the objection may lead to the issue being waived on appeal.  At one point in the trial the prosecutor asks questions over Murdock’s repeated objections without any ruling from the judge.  Again, in reality trials are usually fairly calm affairs and the prosecutor would wait for a ruling from the bench before continuing.  But we’ll give the writers a pass on these, since almost everybody uses these tropes and for the most part they don’t affect the story.

The more important issue is that the writers shortened the examination process.  Most people are familiar with the first two stages, examination and cross-examination.  But the process can go further: redirect, recross, further redirect, and further recross.  At one point both Murdock and Ayala give pained expressions when the prosecutor seems to have trapped Reed Richards with a question without allowing Richards to explain his answer.  In reality, Murdock could have given Richards a chance to elaborate.  This is a bit less excusable than the other issues, but it can still be justified in the name of pacing and the length limitations of the medium.

IV. Putting the Defendant on the Stand

This case is a good illustration of the dangers of putting a criminal defendant on the stand.  Here the problem was that the defendant’s emotions got the better of him in the face of heated questioning from the prosecutor, and he said some things that didn’t reflect well on his character.  This is one of the many reasons why criminal defendants are rarely put on the stand.  The benefits rarely outweigh the risks.

V. Conclusion

All in all, Trial of the Century is a better courtroom storyline than The Trial of Marvel Boy, although that one isn’t too shabby itself.  We’ll analyze more comic book trials as we come across them, but if there’s one in particular you’d like to see us discuss, let us know!

20 Comments

Posted in criminal procedure, evidence

Thor, Part Two

Posted on May 9, 2011 by | 8 comments

We’ve written one post about the Thor movie already, but there are a couple of other legal issues to discuss.  As before, spoilers follow after the break.

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8 Comments

Posted in movies, torts

Thor

Posted on May 6, 2011 by | 26 comments

So Thor is out. And it’s pretty good. I mean, it’s no Dark Knight, or even Iron Man, but neither is it The Fantastic Four (which, let’s face it, just sucked).

But you aren’t here for a review of the movie as a movie. You’re here for a review of the movie as it pertains to the legal system! At first glance, one might wonder exactly how a movie about an Asgardian major deity might have anything whatsoever to do with the American legal system. You’d be surprised! Spoilers, as always, follow after the break.

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26 Comments

Posted in constitutional law, contracts, insurance, mailbag, movies

Daredevil: The Trial of the Century Part I

Posted on May 4, 2011 by | 14 comments

It’s taken us a while to get around to it, but we’re finally going to talk about Daredevil, aka Matt Murdoch, one of the most famous superhero lawyers.  This will be the first in a series of posts discussing the Trial of the Century storyline, which ran from Daredevil vol. 2 #38 – 40.  Be warned: there will be significant spoilers throughout this series.

We’d like to start by saying that this is one of the better written trial storylines we’ve encountered in the comics.  It’s not perfect, but we definitely want to give writer Brian Michael Bendis credit for getting the broad strokes as well as many of the details correct.  However, there are a few issues to address, starting with the charges against the defendant.  But first a quick synopsis of the facts:

A couple of gang members are interrupted by a police officer while robbing a pawn shop.  In the ensuing scuffle, the police officer’s gun is taken and he is shot.  Hector Ayala (aka the White Tiger) arrives and attempts to stop the criminals, but they overpower him.  When backup arrives, they find Ayala standing over the dead police officer holding a television.  Certainly, it looks bad for Ayala.  Matt Murdoch takes the case despite the fact that the media is hounding him after allegations surface that he is Daredevil.

I. The Charges — and a Lesson on Lesser Included Offenses

The charges against Ayala are never fully described, although Murdoch describes them as “the crimes he stands accused of,” so we assume there are multiple charges, presumably including some kind of attempted robbery.  What we know for sure is that the jury returns a guilty verdict for the charge of manslaughter in the first degree.  This is strange to say the least.  In New York, where the crime was committed and where the trial takes place, the most relevant definition of first degree manslaughter is this:

A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. N.Y. Penal Law § 125.20.

However, because Ayala was accused of killing a police officer engaged in performing his official duties it would make more sense to charge him with aggravated first degree manslaughter:

A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer …, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer…, he or she causes the death of such officer … . N.Y. Penal Law § 125.22

It’s possible that the prosecution intentionally declined to bring an aggravated first degree manslaughter charge, but that seems very strange in a highly visible case involving the death of a police officer allegedly at the hands of a superhero who is being defended by famous attorney Matt Murdoch, who is himself fending off allegations that he is Daredevil.  Indeed, it’s more likely the prosecution would have gone straight to first degree murder.  We’ll stick to manslaughter for our analysis, but bear in mind that a similar analysis would apply to an alternative charge of murder.

Now, it is entirely possible for the prosecutor to bring separate charges for first degree manslaughter and aggravated first degree manslaughter because the prosecution may charge the defendant in the alternative.  People v. Gallagher, 69 N.Y.2d 525, 528 (1987).

However, the doctrine of merger dictates that Ayala could not be guilty of both manslaughter charges simultaneously: the regular charge merges with the aggravated charge because regular manslaughter is a lesser included offense of aggravated manslaughter, i.e. “that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.”  People v. Glover, 57 N.Y.2d 61, 63 (1982).  In this case the only difference between the two crimes is that in one the victim is “another person” and in the other it is a police officer.  Since a police officer count as “another person,” it is impossible to commit aggravated first degree manslaughter without committing regular first degree manslaughter at the same time.  The merger doctrine prevents ‘double-dipping’ multiple charges for the same criminal act.

The weird thing is that the prosecution offered the alternative charge at all.  It’s undisputed that the victim was a police officer performing his official duties.  The defense could try to argue that the defendant did not know and should not reasonably have known that the victim was a police officer, but the victim was killed with his own gun.  It’s pretty hard to take a cop’s gun from him and shoot him without, at some point, realizing that it’s a cop.  So we would expect the prosecution to go straight for the more serious charge.

Now, frequently a defendant will request that a lesser included charge be presented to the jury so that it has the option of finding the defendant guilty of the lesser included offense rather than the greater offense.  But such an instruction requires “a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.” Id.

As described above, though, we don’t think there’s a reasonable view of the evidence that would support that, and certainly that’s not part of Murdoch’s defense strategy.  So the alternative charge would have to come from the prosecution, weird as that would be.  But if that’s the case, then being found guilty of regular first degree manslaughter is actually a slight win for Ayala.  It’s far from the worst crime he could have been convicted of, given the prosecution’s allegations.

II. Cumulative Evidence, Expert Testimony, and Motions in Limine

Twice during the trial the prosecution and defense debate evidentiary issues.  First, after a police officer who arrived at the scene relates what he saw, Murdoch’s law partner Foggy Nelson states “Your Honor, if the defense stipulates that all seven officers witnessed the same events as Officer Snipes and came to the same conclusions from it…Will the prosecution spare the court the tediousness and move on with the trial?”  The prosecution declines the offer, apparently leading to a series of police officers being called to testify to essentially the same facts.

Second, when the defense calls Reed Richards as an expert witness the prosecution “strongly objects” on the basis that the witness “has had no direct contact with the accused.”  The judge reluctantly allows the witness over the prosecution’s continued objections.

In reality, both of these evidentiary issues would have been fought out via motions in limine rather than in full view of the jury.  More specifically, rather than politely asking the prosecution not to call the other witnesses, the defense would have made a motion to exclude their testimony as cumulative.  And rather than object to Richards as a witness in the middle of trial, the court would have conducted a Frye hearing to determine whether Richards’ testimony would be admissible as expert opinion on the psychological makeup of superheroes.

(Because New York has not adopted the Federal Rules of Evidence, it, along with a few other states, continues to use the older Frye standard for admissibility of expert testimony rather than the more common Daubert standard.)

These are fairly minor points, and we understand that the writers didn’t want to break up the action and the chronology by presenting pre-trial motions.  However, at a minimum the attorneys should have approached the bench or withdrawn to the judge’s chambers to discuss the issues outside of the jury’s hearing.  Besides, it’s a great excuse to use impressive lines like “Counsel, approach the bench” and “Counsel, in my chambers. Now.”

III. Conclusion

The writers did a good job with this storyline, but we think some of the details could have been tightened up without hurting the plot.  In fact, a little more attention to legal detail might even have improved it.  A charge of first degree murder is much more dramatic than first degree manslaughter, after all, and we’ve already discussed how the proper way to handle evidentiary issues can give rise to some nice lines. We’re not done with this storyline yet, though, so keep an eye out for more posts in this series!

14 Comments

Posted in criminal law, criminal procedure, evidence

Marvel Civil War II: Deadlines and Due Process

Posted on May 2, 2011 by | 21 comments

This is the second in our series on Marvel’s Civil War event. We started with some framing issues, namely that there are problems with the way the series treats the law in general. Now we’re going to look at some of the specifics about how the stories implement the law as a plot point.

I. The Deadline

For the first few months of the event, much of the drama centered on what would happen at the stroke of midnight when the Superhuman Registration Act (“SHRA”) went into effect. Civil War #2 actually shows a screen in what is probably Times Square announcing “Registration Act Becomes Law” at midnight on that day. The gist is that it seems that Congress passed the bill and the President signed it into law, and the text of the bill said that it was slated to go into effect at some point in the future. Is that really how laws work?

Sort of. Yes, it’s entirely possible for a law to incorporate a delay in its effectiveness. The 2010 health care reform law contains numerous provisions which will not go into effect for years, and even the ones that are currently operative did not generally become so the instant the bill was signed. There are dates, specified in the bill, when certain provisions go into effect. This is actually pretty common, as at the very least, Congress tends to like at least some lead time to permit the Library of Congress to update the United States Code before the new code sections are to be effective. Having bills become effective as soon as they’re signed can be useful, but where time is not of the essence, picking a date in the near future tends to make the logistics of the process run a bit more smoothly.

So yes, if Congress were to pass a version of the SHRA, there would be a deadline beyond which superhumans would be required to register, and something big would likely go down on that day. But the deadline for registration would probably not be the date the law became effective. Why? Because before the law becomes effective, there is no way for anyone to register. The law which creates the need for registration also creates the process for registration, so before the law is effective, a superhuman who wanted to register would have no way of doing so. This is actually inadvertently hinted at in the way registration is portrayed in the stories. We never see superhumans headed down what amounts to the superhuman DMV. Instead, they’re all approached, in person, either individually or in small groups, by agents of S.H.I.E.L.D., asking them to sign the paperwork. Where that paperwork came from is never really addressed—Who wrote it? When? If it was before the bill became law, under whose authority?—but it’s all a pretty ad hoc process. We’ll talk about the constitutional problems with this in a minute, but that aside, even if Congress were silly enough to pass a the SHRA, it’s highly doubtful that they’d require each and every superhuman to be served with papers personally. The DMV may suck, but it does basically work, and there’s no reason to think that Congress wouldn’t create an analogous agency (or empower an existing one) to take care of this.

Still, though the portrayal is rather inconsistent and not without its problems, with two relatively minor tweaks the writers could still create a situation where the country was holding its breath as the clock ticks towards midnight on Registration Day. First, the law would go into effect without much fanfare, and it would authorize a federal agency to promulgate the rules and develop the process whereby superhumans could register. The agency would probably have a fixed—and short!—amount of time to do this. Second, the law would specify another date after the agency deadline, probably 30, 60, or 90 days, by which all superhumans would be required to register. It would be that date, not the date the bill became law or first went into legal effect, which would be the focus of the drama. And it would be that date, not the date when Tony Stark shows up at your door with a bunch of papers for you to sign, beyond which an unregistered superhero would be in violation of the law. That’s just how these things work.

II. Due Process

The reason they work that was isn’t just logistical. There’s also a very good constitutional reason for having things work this way: The Fifth Amendment right to due process.

Due process is basically the constitutional doctrine that no one can be punished or have their legal rights adversely affected without there being some kind of procedure. For example, if the government wants to imprison someone for committing a crime, there must be a trial, the defendant must have the option of a jury trial, the defendant must have access to competent counsel, and the prosecution must prove its case beyond a reasonable doubt—among other things. Similarly, in the civil context, no one can have a judgment enforced against them unless they were properly served, i.e. notified of the lawsuit.

So if the SHRA were to work the way it seems to in the comics rather than in the way outlined above (which, you will note, still lets the story proceed largely intact), a superhuman arrested for failure to register would have a number of arguments that this violated his constitutional right to due process.

First, there’s the fact that the law requires superhumans to register by a certain date without actually giving them any opportunity to do so. There do not appear to be any logistical structures in place to permit registration before the stroke of midnight when the bill became law, so arresting people ten seconds later is just unfair. Any hero who wasn’t served with papers could plausibly argue that he’d love to register if only someone would tell him how.

Second, there’s the timing issue. Cars must be registered, but most states give you a week if not a full thirty days to register a car after you buy it. Why? Because the DMV isn’t always open, because people have jobs, and because there’s just no good reason to insist that it happen right away. So when the cape-killers come to knock down his door at five seconds past midnight, why can’t a hero just say, “Gentlemen, my wife is sleeping, my kids are sleeping, and until you so rudely awakened me, I was sleeping. Can this not wait until morning?” Really, there doesn’t seem to be any reason why not. Heck, why not just make the deadline noon instead of midnight? But even that wouldn’t really solve the problem. People, even superhumans, have lives, things to do, obligations, responsibilities, the whole nine yards. If the government’s going to come along and add another thing to that neverending list, the least it can do is give people a chance to work it into their schedule. Complete failure to do that would almost certainly constitute a due process violation. Again, even if this were done right, there’s still plenty of drama to be had here. It would only have taken a panel or two to show that a month had gone by since the act become law, and that any superhuman who was going to register had his chance to do so. On with the cape-killers and the fighting and the angst.

III. Conclusion

Ultimately, this issue is kind of a toss-up. The writers got it wrong, but they did so in the name of drama, and as it turns out, a few relatively minor tweaks to the way the law was conceived would have permitted most of that drama. But what’s disappointing is that if they had adopted those tweaks, the pro-reg side would have seemed a lot more reasonable. Luke Cage wouldn’t have been able to make his rather overwrought comparison to race lynchings in the 1960s if instead of Iron Man and a squad of cape-killers, he had gotten a registration packet in the mail and a month to think about it. If he defies the law then, he looks less like someone who just wants to get a good night’s sleep without having his home invaded by federal troops and more like someone who really is taking a principled but morally ambiguous stance. And when Stark does show up, he’d be able to take the position that Cage had plenty of opportunity to trundle on down to the local registration office (or file a lawsuit opposing the law!), that he’d had every chance to do this like a civilized adult, but was now choosing the hard way. As the event seems to have wanted to explore those issues, getting the law wrong leaves the story more than a bit lop-sided.

21 Comments

Posted in constitutional law

Mailbag for April 29, 2011

Posted on April 29, 2011 by | 24 comments

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

We have another intellectual property question this week, this time about gene patents and Spider-Man.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

@MrCrumley on Twitter asks: “Have you dealt w/ Spider-Man’s genetically modified dna & the similarities to Monsanto’s suits regarding GM corn?”  Here, MrCrumley is asking about Spider-Man’s origin in the 2002 film, in which he gains his powers from a genetically engineered spider’s bite rather than the traditional radioactive one.  There are a few different issues to consider here, including the patentability of genetically engineered organisms and the nature of gene patents.  First, a brief bit of factual background.

I. Monsanto and GM Crops

For those who don’t know, Monsanto is a large agricultural biotechnology company.  (As it happens the company’s headquarters is about two miles from James’s house).  In particular, it manufactures a wide variety of genetically engineered crops, herbicides, and especially crops that are resistant to those herbicides, thus allowing farmers to spray the herbicides on the crops, killing only the undesirable weeds.

Monsanto requires farmers who buy its seeds to sign an agreement that the farmers will not save and replant seeds from the patented crops, and Monsanto is not afraid to sue farmers who violate that agreement.  The company has sued 145 farmers in the United States, and 11 of those suits went to trial, each time ending in Monsanto’s favor.  This is somewhat unusual because patent infringement cases are generally filed against businesses rather than individual end users.

Perhaps the most controversial Monsanto case occurred in Canada: Monsanto Canada, Inc. v. Schmeiser, 1 S.C.R. 902 (2004).  In that case, the defendant farmer alleged that genetically engineered canola seeds had simply blown onto his fields, and so his subsequent saving and replanting of seeds should not be considered patent infringement.  Specifically, he argued that planting the seeds did not amount to an infringing use of the patented cells and genes.  The Supreme Court of Canada held otherwise.  However, we will focus on US law here.

The question, then, is this: assuming that the genetically engineered spiders were covered by one or more patents, could Spider-Man infringe those patents?

II. The Patentability of Genes and Genetically Modified Organisms

A threshold question is what, exactly, do we mean when we say that the spiders are covered by one or more patents.  People often talk about “gene patents,” but what exactly are they?  In the United States there are two main kinds of claims in gene patents: claims to genetically modified organisms and claims to DNA or proteins produced by DNA.

We should first note that the patentability of DNA sequences is currently the subject of a federal lawsuit, Ass’n for Molecular Pathology v. USPTO, 702 F.Supp.2d 181 (S.D.N.Y 2010) (presently on appeal to the Federal Circuit).  The suit could potentially invalidate all patents claiming an unaltered genetic sequence (i.e. a sequence as it appears in nature, even if the patent claims isolated, purified DNA).

The validity of claims to genetically modified organisms was first recognized in the landmark case Diamond v. Chakrabarty, 447 U.S. 303 (1980).  Although the Chakrabarty case involved a genetically modified bacterium, the Patent Office and the courts have subsequently recognized the validity of patents claiming multi-cellular organisms, including animals.  So presumably a genetically modified spider could be patented.  However, a human couldn’t infringe claims to a genetically modified spider, since, well, a human is not a spider.

So what about claims to the DNA itself?  Claims to DNA generally take the form of “Purified and isolated DNA, wherein the DNA molecule has a nucleotide sequence as set forth in Fig. 1” or “A purified and isolated protein, as an expression product of a transformed host cell containing a DNA molecule coding for the protein, the DNA molecule having a nucleotide sequence as set forth in Fig. 1.”  As you can see, these kinds of claims require a purified, isolated form of DNA, which is not the natural state for DNA in the body, and so Spider-Man wouldn’t infringe such a claim.

Even the second example, a purified and isolated protein (such as the proteins that make up spider silk), wouldn’t apply because spider silk is made up of several proteins.  But one could imagine a patent claiming spider silk produced by a genetically modified organism having a particular DNA sequence.  In fact, a patent application claiming a genetically modified silkworm that produces spider silk was filed in 2010.  So could a patent like that spell trouble for Spider-Man?

We think not.  The patent would likely have to claim a genetically modified spider or another specific organism (e.g. a silkworm or, believe it or not, a goat), which of course would not apply to a human.  A patent that tried to claim a broad class of organisms (e.g. mammals) modified to produce spider silk would be invalid for lack of enablement unless the patent “contain[ed] a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”  35 USC 112.  Since genetic engineering is a fairly complex and difficult process, it is unlikely that a patent could describe a general process for modifying organisms to produce spider silk.

The only way Spider-Man could infringe the patent, then, is if it specifically claimed and described a genetically modified human that produced spider silk.  There is no evidence, however, that the scientists in the movie had developed a way to modify a human in that way, and furthermore it is likely that the Fifth and Fourteenth amendments would forbid claims that covered genetically modified humans.  Just for starters, a patent could not grant someone the right to exclude another human from reproducing because the Constitution protects “personal decisions relating to … procreation.”  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).  There would be other problems with, e.g, the unavoidability of infringement, since it would be difficult or impossible to cease infringing.

III. Conclusion

Spider-Man is almost certainly safe from a patent infringement suit.  Either the patents simply wouldn’t cover him or, if they did, they would be invalid for doing so.  This same analysis applies to pretty much any superpowered character whose abilities come from genetic mutations or modifications.  While gene patents may be controversial for many reasons, the threat of lawsuits against superheroes isn’t one of them.

That’s it for this week.  Keep your questions coming in!

24 Comments

Posted in intellectual property, mailbag, patents

Superman’s Citizenship

Posted on April 28, 2011 by | 41 comments

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…

41 Comments

Posted in Uncategorized

Marvel Civil War I: Meta-Post

Posted on April 27, 2011 by | 38 comments

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.

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Posted in Uncategorized

Law and the Multiverse Holiday Special – Easter Edition

Posted on April 24, 2011 by | 11 comments

Many of our readers might remember the first Law and the Multiverse Holiday Special, which analyzed the legal issues surrounding Santa Claus.  This time around we’re going to take a brief look at the Easter Bunny (who, along with Santa Claus, is technically a DC comics character).

I. Intelligent Bunnies

As with Santa Claus, a big issue for the Easter Bunny is trespass.  Entering other people’s property and leaving eggs definitely fits the bill for the tort of trespass to land.  Now, with Santa Claus there was an easy answer to this problem: the home owners clearly invited Santa Claus to enter their property, as demonstrated by the stockings, milk and cookies, and so forth.  But there’s no consistent signal that the Easter Bunny is allowed to enter a person’s property.  This is a problem for any version of the Easter Bunny that might be considered a legal person (e.g. the versions that are intelligent and can talk).

Another problem for these Bunnies: where do they get the eggs?  Do they own and raise the chickens themselves?  If so, do they follow all the regulations for chicken farming?  If they buy the eggs, where do they get the money?  There are a lot of holes in the Easter Bunny’s story, to say the least.  At least Santa has a ‘volunteer’ labor force to make the toys.

Of course, unlike Santa, nobody seems to know where the Easter Bunny actually lives these days.  Service of process and jurisdiction might be significant problems for any would-be plaintiffs.

II. Non-Intelligent Bunnies

Some versions of the Easter Bunny are more-or-less actual rabbits, and animals can’t be liable for torts.  However, the animal’s owner can be.  If an animal’s owner lets an animal loose (either intentionally or negligently), and the animal enters another person’s property, that can be a trespass.  But the Easter Bunny doesn’t seem to have an owner (with the possible exception of Cadbury), so this suggests those Bunnies are actually wild animals.

This is unfortunate for the Bunny.  On the one hand it means that neither the Bunny nor any person is liable for its trespasses, but on the other hand it means that in many places the Bunny could be legally captured or even shot.  This concern seems pretty theoretical, however, since the Bunny is apparently very stealthy.

III. Conclusion

As a practical matter, both intelligent and non-intelligent Easter Bunnies seem to be safe from both lawsuits and rabbit traps.  We would still advise intelligent Easter Bunnies to adopt a standard signal that they are allowed on a person’s property, though.  Better safe than sorry!

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Posted in torts

She-Hulk #3

Posted on April 22, 2011 by | 13 comments

Slight change of plans from Friday’s usual Mailbag—today we’re looking at She-Hulk #3.

This issue raises one main legal question, plus a sort of “meta” issue which is interesting in its own right. The main story is that Jen Walters’ firm has been hired to defend a man accused of murder. The reason this is a superhuman case is that the alleged victim happens to be the main witness. Which is a little bit weird, we think you’ll agree.

I. Testimony From Beyond the Grave

We’re going to just ignore the fact that the evidentiary issues are being tried in open court instead of being fought out via motions in limine, the way they would in a real court case. That aside, the prosecutor objects to the admission of the victim’s testimony arguing that “as a dead man he has no rights in a court of law.”  This is more or less true: legal claims survive the death of the claimants and become the property of the estate (this is how a claim for wrongful death works, for example). Similarly, in New York the next of kin of the deceased have several rights with regard to the autopsy and disposition of the body.  So what we might intuitively think of as the rights of dead people are actually held by the living, usually the next of kin or heirs.

But this is beside the point.  The ghost of the deceased victim doesn’t need any rights to testify as a witness, rather the living defendant has a right to call any competent witness to give relevant testimony.  The testimony the ghost offers is plainly relevant (he’s the victim, after all), and “[a]ll adults are presumed competent to testify” under New York law.  Brown v. Ristich, 36 N.Y.2d 183, 188 (Ct. App. 1975).  It takes a lot to show that a witness is so incompetent that they shouldn’t be allowed on the stand:

A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth.

Brown, 36 N.Y.2d at 189.  The victim meets this standard just fine, so the prosecutor is left with trying to attack the witness’s identity (i.e. is he really the victim’s ghost?) and impeach his credibility (more on that in a moment).

The witness’s identity is a problem of authentication, i.e. exactly who and/or what is this thing that is attempting to testify? We’ve got Dr. Strange kind of doing his thing and then… I mean, if you tried that in a court of law today the judge would probably sanction the attorney, the person standing next to the attorney, and everyone in a ten foot radius. Judges don’t like being played for fools.

But that’s just the thing: the defense’s argument goes not only to the authenticity of the witness specifically, but the idea that people cease to exist when they are dead. To this effect, they call The Thing to the stand as an expert witness. What is his expertise? The fact that he’d recently come back from the dead. So, as it turns out, had about half of the people in the room, including the deputy prosecutor (much to the lead prosecutor’s annoyance). So the judge was forced to take note of the fact that in the Marvel Universe, coming back from the dead is something that happens, and happens relatively frequently. So frequently, in fact, that the legal system is forced to come up with some way of dealing with it.

At this point, putting a ghost on the stand becomes like any other witness. Every single time testimony is offered the jury needs to decide, and the attorneys need to establish (or attack!) the credibility of the witness. In a world where ghosts are a verifiable fact of life, having a ghost as a witness simply adds another layer to that story, and the opposing side will have its chance to discredit the testimony just like they would attempt to discredit any other witness. More time might be spent on the identity and mental integrity of a ghost than would for a living witness, but ultimately, that’s something the jury is going to have to decide for themselves. Remember, just because you get testimony admitted does not put the jury under any obligation to believe a word of it. Sure, it’s always good to try to keep out testimony which could be bad for your side, and many cases turn on motions in limine, but just because one side can get something admitted does not guarantee anything.

II. The Normalization of the Supernatural

Which brings us to the second issue: this is actually a pretty decent look at how the law might actually develop if faced with an issue like this—allowing for the acceptable departures from reality to which all depictions of the legal system are prone. A lot at what we do on this blog is look at how existing law, without modification, might handle supernatural issues. But really, the way it would handle these things is by establishing precedent and ultimately probably legislation intended to cover these issues. This issue looks at how one might go about trying to establish that precedent. Essentially, one would need to convince the court that the fantastic claim one is advancing, whether it be that one’s client can walk through walls or that the defendant can control people’s minds, is, in fact, true. And one could plausibly do this by bringing in a bunch of people to testify, unrelated to the factual issues at hand, about similar experiences they’ve had, as such would be relevant to establishing a key element of one side’s case. So when the defense in this issue asks for a show of hands about how many people in the room have been brought back from the dead, well, they’d all probably have to be sworn in, meaning this would take all damn week, but that’s not all that far off. Besides, defense counsel get paid by the hour anyway.

III. Conclusion

This issue shows a rather interesting possibility, one which criminal attorneys on both sides might salivate over, as well as getting at some of the issues about how one might get such testimony admitted into evidence. Basically, the question is whether one can convince the judge that what is being proffered is sufficiently part of everyday experience—or supported by adequate expert testimony. In the case of ghosts, the question really becomes one of verification. In our world… yeah, good luck with that. But in the Marvel Universe? Or in ours, should ghosts suddenly become common? If counsel can come up with something plausible enough to convince the judge, there’s no law that says such testimony could not be admitted.

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Posted in criminal procedure, evidence