The Legal Side-Effects of Amnesia

Posted on April 20, 2011 by | 37 comments

Characters in comics frequently come down with amnesia, whether induced by superheroes, supervillains, or more pedestrian causes.  This post considers one legal side-effect of amnesia: loss of competency to stand trial.

We’ve talked about supervillains and competency before in the context of the mental illnesses that many supervillains (and even some superheroes) arguably suffer from.  But what about amnesia?  If a telepathic superhero (e.g. Professor X, Psylocke) erases a supervillain’s memories in order to stop an attack or prevent future crimes, could that interfere with the government’s ability to try the supervillain for the crimes he or she already committed?  Or if a superhero’s memories are erased by a supervillain, leading the superhero to commit crimes, could the superhero argue incompetency to stand trial for those crimes?  In some jurisdictions, the answer may be yes.

I. Competency and Due Process

In the US, competency is part of the constitutional right to due process.  “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”  Drope v. Missouri, 420 U.S. 162, 171 (1975).  The Court noted that “the prohibition is fundamental to an adversary system of justice.”  Drope, 420 U.S. at 172.  In other words, in an adversarial system it’s simply not fair to pit the entire weight of the state against an incompetent defendant.

II. Amnesia and Competency

So then, does amnesia—specifically, amnesia regarding the alleged crime—render a defendant incompetent to stand trial?  The general rule is that it does not.  “[T]here is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.”  Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961) (emphasis added).  Courts are reluctant to allow a defense of amnesia because it can be faked and because it is often de-coupled from an ongoing mental illness or defect, which means the amnesiac may be clearly competent in many ways.

However, while no courts have adopted a bright line rule that amnesia necessarily implies incompetence, several courts have allowed amnesia to be considered in the usual competency analysis.  See, e.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir. 1973); Morris v. State, 301 S.W.2d 381 (Tex. Crim. App. 2009).  Severe amnesia—to the point of interfering with a defendant’s ability to consult with and assist his or her lawyer—may lead to a finding of incompetency.

The Wilson court went one step further and gave a list of six factors a trial court should use at the post-trial stage in considering whether a defendant’s amnesia has affected the fairness of the trial:

(1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.

(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.

(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

In general, the worse the amnesia and the weaker the external evidence—including the government’s case—the more likely that the trial will be found to violate due process.  However, the D.C. Circuit is essentially alone among jurisdictions in taking this approach, which has been explicitly rejected by many other courts.  See, e.g., State v. Peabody, 611 A.2d 826 (R.I. 1992).

III. The Wilson Test In Practice

So let’s apply this to a few examples. For starters, in X-Men #3 from 1963, Professor X winds up erasing the Blob‘s memory of the X-Men and his attack on them. But the Blob only winds up losing a few hours of memory, maybe a day at the worst. So while he wouldn’t be able to testify about what he did, if the state decided to press charges for something he did during his rampage, he’d probably wind up passing a competency hearing.  His amnesia is not so severe that he has forgotten who he is or why he might have been motivated to do what he did.  Further, there’s enough extrinsic evidence that it’s unlikely that any of his defenses would require him to testify from memory.  Courts routinely reject this kind of short-term amnesia as an impediment to competence in cases where defendants have forgotten the crime itself because of substance abuse (e.g. blacking out after a bar fight) or trauma.

But what about Magneto in Defenders # 15-16? Magneto is regressed to infancy by Alpha. That right there raises significant competency questions, not only to do with memory, but rationality and maturity. Again, proving Magneto’s mental state could be tricky, but the fact that he does not remember anything about what happened before his encounter with Alpha should not be hard to establish. Here, the fact that Magneto possessed essentially no record of his prior life should produce a very different outcome from the Blob’s case above, as the “old” Magneto could have presumably raised affirmative defenses—such as necessity—for his actions, while the new one cannot even understand why he would have done the things of which he is accused, something the Blob probably would be able to do.

IV. Conclusion

Superheroes should think twice about erasing a villain’s memories.  While it may be an effective way to stop a villain in his or her tracks, it may also render them incompetent to stand trial.  In general, the worse the amnesia, the more likely the defendant is to be found incompetent, so go easy on the mind wipes, guys.

37 Comments

Posted in constitutional law, criminal procedure

Accidental Superpowers and Assumption of Risk

Posted on April 18, 2011 by | 20 comments

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.

20 Comments

Posted in criminal law, torts

Mailbag for April 15, 2011

Posted on April 15, 2011 by | 23 comments

This week’s reader questions are about intellectual property issues, including trademarked superhero slogans and copyright across alternate universes.  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.

I. Copyright and Alternate Universes

John asks, “In an issue of New Excalibur, Nocturne (Talia Wagner; the daughter of Nightcrawler from an alternate universe), is listening to her iPod.  Dazzler asks what she has on it, and Nocturne tells her it is the Beatles 40th anniversary album.  Apparently in her universe the Beatles never broke up, and John Lennon was never killed.  …

What if somehow either by file sharing or a hacker, the contents of Nocturne’s iPod becomes available to the larger 616 universe.  Who can lay claim to the rights of intellectual property and royalties (if anyone)?  [Assume that the alternate universe copyright holders cannot lay a claim themselves.]”

The answer is a bit complicated. For conciseness and readability we’ll use the phrase “Earth 616 Beatles” to refer to the Beatles and their heirs, successors, and assigns (i.e. whoever it is that owns the relevant intellectual property).

First we must decide if there is an Earth 616 copyright in the recordings at all.  Since the alternate universe United States is not a signatory to the Earth 616 Berne Convention, it’s quite possible that the courts would take the view that there is no copyright in the work at all, or at least not one that the Earth 616 United States recognizes.  NB: Talia can’t claim copyright in the recordings herself because she didn’t create them.  But what if the copyright were recognized?

We still don’t think the Earth 616 Beatles have a copyright claim.  Clearly they didn’t create the tracks outright, and even if the album incorporated music that was substantially similar—or even identical—to Earth 616 Beatles music, the defense of independent creation absolves the alternate universe Beatles (and thus Talia) of any liability for infringement because the alternate universe Beatles created their music without ever knowing about the Earth 616 Beatles.  Indeed, coming up with the same music in an alternate universe is about as independent as independent creation can get.  Notably, independent creation is something the Earth 616 Beatles—George Harrison at least—should be very familiar with.  See ABKCO Music, Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983).

The first complication comes from trademark and the right of publicity.  Theoretically the Earth 616 Beatles could sue to prevent Talia and others from misrepresenting the music as ‘Beatles music.’  They could seek an injunction requiring them to describe it as coming from an alternate universe with no connection to the Earth 616 Beatles.  This would create a contrast to their own “genuine Earth 616 Beatles creations.”

The second complication comes from the possibility of criminal copyright infringement.  While we may assume that Talia properly purchased her copy in the alternate universe, anyone else making copies might run afoul of the criminal copyright infringement statute.  17 USC 506.  If the US government recognized a copyright in the works, it could prosecute distributors of the work even though the copyright holders couldn’t possibly benefit, since they’re in an alternate universe.

Of course, if the Earth 616 US passed an orphan works law, this would be a perfect case for it, since the copyright holders can’t be located.

II. Superhero Slogans and Trademarks

Walter asks, “[Y]ou’ve covered copyrights and trademarks but what about slogans or words of power?  Take, for example, Captain Marvel and the word “shazam.” In the real world, that word is being used by several companies, including a music app recently prominently featured in a television campaign. If the word “shazam” is a legal trademark of the company [it is —James], is Captain Marvel in violation of a law for using it for his transformation? Should he have copyrighted his secret word to protect if from this sort of situation?

The answer to the first question is: probably not.  First, trademark infringement generally requires “the sale, offering for sale, distribution, or advertising of … goods or services” 15 USC 1114(1)(a) & (b).  We suppose Captain Marvel could be accused of advertising his services as a crimefighter, but that’s a slender reed upon which to build a case.

Second, most trademarks only protect particular areas of use (e.g. in this case, “software for music recognition,” among other things).  I think it would be pretty unlikely for a company to register a trademark in the area of “superheroic crimefighting,” which is the essential area of use for Captain Marvel.

Third, trademark infringement depends on a likelihood of mistake, deception, or confusion between the mark and the allegedly infringing use.  Id.  I don’t think it’s very likely that a bystander will hear Captain Marvel transform and think “ah! I’ll bet he could tell me the name of the song I’ve been humming” or “ah! I’ll bet he’s sponsored by the music app people.”

Now, there’s a higher standard for what are called famous marks (e.g. the really ubiquitous names like Kodak and McDonald’s).  Some marks are so famous that they apply to all areas of use.  What’s more, the standard is not likelihood of confusion but rather likelihood of dilution.  15 USC 1125(c).  That is, is it likely that the value of the mark will be diluted by unauthorized use, even if no one would be confused?  However, I don’t think there are any superheroes with a slogan or word of power that happens to be a famous mark, and they could still argue no likelihood of dilution and noncommercial use, especially if they didn’t make a big show out of yelling their words of power or slogans.

Note, though, that using a mark, especially a famous mark, might make it difficult for the superhero to sell merchandise, particularly depending on the nature of the merchandise and the areas the mark is used in.

Now for the second question: “Should he have copyrighted his secret word to protect if from this sort of situation?”  This one is much simpler.  Generally speaking individual words and short slogans can’t be copyrighted.  Captain Marvel could have trademarked it before the other folks did, but he’d need to use it in commerce in order to do so (e.g., sell comics, talking action figures, etc featuring the trademarked word).  And unless his slogan became a famous mark, he’d only be protected in those particular areas of use.  But since he’d probably be safe anyway, such defensive measures probably aren’t necessary in his case.

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

23 Comments

Posted in copyright, intellectual property, mailbag, trademark

Animal Sidekicks, Part Three

Posted on April 13, 2011 by | 21 comments

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions (see here for part one and part two).

I. Leash Laws and the Like

Leash laws vary widely from jurisdiction to jurisdiction.  Many cities and counties (and some states) require animals to be kept on leashes or otherwise controlled when in public, or at least in certain public areas.  Sometimes these ordinances are specifically aimed at dogs, but sometimes they are written to apply to all pets or kept animals.  See, e.g., St. Louis County Revised Ordinance 611.200.  It’s not common in the US, but some cities even require dogs to be muzzled in public.

So what does this mean for a superhero with an animal sidekick?  First, it means doing a bit of research before traveling with the sidekick.  This is an area where the law can vary substantially from one city or county to the next, and ignorance of the local laws is not a defense.  It would be pretty embarrassing for a superhero get busted for not having his or her faithful companion on a leash while out fighting crime.

Second, it means brushing up on the defense of necessity.  If violating a leash law allows a superhero and his or her animal sidekick to stop a much worse crime about to be committed by a supervillain, then the defense of necessity may excuse the lesser harm of letting the animal run loose.  Necessity is usually based on some kind of reasonableness standard, so the superhero can’t just let the animal run loose all the time on the theory that a crime is bound to be attempted sooner or later.  Instead, we recommend investing in some kind of quick-release harness.

Note that many leash laws have exceptions for service animals, but we don’t think many animal sidekicks would meet the criteria for being a service animal.  Daredevil briefly had a seeing-eye dog named Deuce, but that’s about it as far as we can recall.

II. Health Regulations

Many animals are also subject to a host of health regulations, particularly vaccination requirements.  There are also laws regarding the quarantine and even destruction of diseased animals, but let’s assume that superheroes keep their sidekicks healthy.

The most important requirement is rabies vaccination, although the rules vary from state to state and even within states (e.g., Missouri doesn’t have a state-wide standard but instead directs individual counties to adopt appropriate rules and regulations.  Mo. Rev. Stat. 322.090).  However, most vaccine laws specify particular types of animals, so they are less of a concern for superheroes with unusual sidekicks.  But really this shouldn’t be much of an issue.  Making sure Krypto gets his rabies shots might be pointless (assuming a superpowered Krypto), but it’s not a significant burden, either.

III. Restrictions on Importation and Ownership

Now we come to the big one: can these animals be lawfully imported (or moved across state lines) or even privately kept at all?  Many states prohibit or restrict private ownership of wild or exotic animals, which are defined differently from state to state: another headache for the superhero on the go.

At the federal level, the Endangered Species Act generally prohibits, among other things, the possession, importation, sale, and taking of endangered species.  16 USC 1538(a)(1).  By the way, “‘[t]ake’ is defined … in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, at 7 (1973).  There are a lot of endangered animal species, and although most of them would probably make pretty bad sidekicks—clams are not known for striking fear into the hearts of evildoers—there are some popular choices on the list, such as the gray & red wolves and several eagles.

So there’s a trade-off here.  Having a wild or exotic sidekick avoids some animal regulations, but it subjects the superhero to a new set at the same time.  Also remember from part two of this series that wild animal owners are subject to a higher standard when it comes to injuries caused by their animals.  On balance, our conclusion is pretty simple: “get a dog.”

21 Comments

Posted in administrative law, criminal law

She-Hulk # 2

Posted on April 11, 2011 by | 17 comments

We looked at She-Hulk # 1 last week. Moving on to issue # 2, She-Hulk is plaintiff’s counsel for Dan “Danger-Man” Jermain, given atomic powers as part of an industrial accident. Mr. Jermain wants to sue his former employer for “bodily injury,” despite the fact that the only effects seem to be that he is “larger, stronger, and more powerful.” Okay, he’s also capable of causing small nuclear explosions, but hey, it’s not like it’s going to hurt him any. Defense counsel points out the fact that one needs to stretch the definition of bodily injury way past the bounds of credulity to include imbuing someone with superpowers. She-Hulk thinks she can get around it by arguing that “Danger-Man” and “Dan Jermain” are actually two separate entities, and that the latter ceased to exist when the former came into being. When asked “Do you really think this will work?” she responds “I think I can sell it to a jury.”

There are a number of problems here, so let’s take a look.

I. Workers Compensation

First, whatever happened to workers’ compensation? The rise of the Industrial Era was accompanied by the rise of workplace injuries, as people started working around machines more often, sometimes incredibly dangerous ones. In the nineteenth and early twentieth centuries, it was commonplace for factory workers to lose fingers, even limbs, to exposed machinery. Legal reforms favoring labor began in the late nineteenth century, and by 1949, every state and the federal government had instituted a workers’ compensation regime.

Workers’ compensation operates by creating a system for compensating workers for workplace injuries regardless of fault. What this means is that if you are injured while serving your employer, you get paid the vast majority of the time, even if your employer was completely without fault. This may seem very favorable to the workers, so to even things out, i.e. to make sure that employers weren’t bankrupted every time someone broke an arm, compensation was limited in three ways.

First, compensation for injuries is computed based on actuarial tables created by state agencies rather than by juries. This rationalizes and limits compensation. Whereas a jury can award a basically arbitrary amount of money, workers’ compensation payouts are known ahead of time and are thus a lot easier to plan for and insure. Second, compensation is limited to purely economic damages, i.e. medical bills, lost wages, lost future earnings, etc. There is very little provision for non-economic damages like “pain and suffering,” which really drive up verdicts in liability cases. Third, workers’ compensation is an exclusive remedy, i.e. employees cannot choose to forgo participation in the workers’ compensation program and sue their employers. Workers’ compensation is their only way to recover. So employees benefit because they almost always get paid, even if the accident was their fault, and they usually get paid in a fraction of the amount of time they’d have to wait if they sued. But employers benefit because their costs are controlled and employees can’t turn around and sue them. Workers’ compensation coverage is mandatory in just about every state for just about every employee. There are, of course, certain exceptions, but a worker in an industrial plant working with radioactive materials, e.g. Dan Jermain, would definitely be covered.

So what happened to Roxxon’s workers’ compensation carrier? How is Jermain able to sue at all? Sure, GLK&H might act as plaintiff’s counsel in the workers’ compensation case (coverage can be disputed, leading to litigation, but this is much simpler than suing in open court), but workers’ compensation is largely limited to economic damages. Danger-Man is basically uninjured, and even if we want to go with She-Hulk’s argument and say that Dan Jermain is “dead,” (more on that in a minute), workers’ compensation only pays out a couple of hundred grand—at best—for wrongful death. Not $85 million, which is the settlement reached at the end of the issue.

Of course, the whole issue goes away if Jermain wasn’t an employee. If the writers had him be some random schmo who happened to get in a wreck with a Roxxon tanker truck, covering him in radioactive goo, he would not be covered by the workers’ compensation regime and thus would be free to sue like he does in the comic. Oh well.

II. Questions of Law v. Questions of Fact

Now we’re going to get really nit-picky. She-Hulk says that she thinks she can “sell” Dan Jermain’s death to a jury. Unfortunately, whether or not “Dan Jermain” legally died during the accident is probably not a question of fact. Nor is whether giving someone superpowers counts as “bodily injury”. These would be questions of law. The difference is, in part, who gets to answer such questions and the basis for answering them.

Questions of fact are answered by the finder of fact, generally the jury, though judges are the finders of fact in bench trials. Questions of fact are answered on the basis of the evidence. The questions of fact here would be things like “What are the nature and extent of Dan Jermain’s injuries?” “What caused those injuries?” “Did Roxxon’s negligence lead to Jermain’s injuries?” “Did Jermain’s?” She-Hulk would try to get these questions answered in her favor by investigating the scene of the accident, having experts evaluate Jermain’s condition, deposing witnesses, etc.

Questions of law are answered by the judge on the basis of the law alone. The questions of law here include “Do Jermain’s symptoms constitute ‘bodily injury’ under the law?” “Is ‘Danger-Man’ legally the same entity as Dan Jermain?” “Is Dan Jermain legally dead?” These questions would be answered by looking at existing legal precedent to see what it says about the definitions of “bodily injury” and “death,” and seeing if the facts, when interpreted in the light most favorable to Roxxon, can be made to fit the legal definitions she needs.

Here we’ve got some problems. “Bodily injury” is generally understood to be a bad thing. Federal law defines it as

(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.

18 U.S.C. § 1365(h)(4)

Whether or not Danger-Man’s condition counts as any of those is going to be a question of law for the court. And it’s not entirely clear that it does. He hasn’t been cut, abraded, bruised, burned, or disfigured, at least not in any way shown in the comics. He doesn’t appear to be in any pain, nor to have experienced any as part of the process. Superpowers probably don’t constitute an “illness,” though there may be something there, especially if the powers can’t be controlled. He does not appear to be suffering any impairment of his bodily functions or mental faculties. And calling superpowers “injuries,” when they don’t fit into any of the other definitions, is a stretch, to say the least. Given that Jermain can do just about everything he could before the accident, and can do a lot more now, this is going to be a tough sell.

Though there is another claim that the authors seem to have forgotten: loss of consortium. This is a claim for loss of the affection and companionship of a family member, typically a spouse, and typically a particular kind of companionship, if you catch our meaning. Jermain seems to have been affected in a substantial way, here. Even sharing a bed with his wife is physically dangerous for her. That’s the kind of change in a relationship that a jury might well be willing to award damages for.

III: Conclusion

There was more legal meat in this one. Missing the difference between questions of law and questions of fact is understandable, though. That one even trips up experienced attorneys from time to time, as the two can blend into each other pretty easily (so-called ‘mixed questions of law and fact’). So we’ll give them a pass on that one. But missing the workers’ compensation angle was a pretty big mistake. Even most laymen are at least aware of workers’ compensation, even if they aren’t entirely aware of how it works.  Maybe we can chalk this one up to most comic book authors and illustrators rarely making use of workers’ compensation; comic book publishers are not exactly hotbeds of industrial accidents. Still, all they’d need to do is change a single panel, making the plaintiff a bystander instead of an employee, and the rest of the story is more-or-less okay.

17 Comments

Posted in labor law, torts

Mailbag for April 8, 2011

Posted on April 8, 2011 by | 10 comments

This week we’re taking a look at reader questions about the legitimacy of certain kinds of punishment and whether doctors or veterinarians would be legally licensed to treat extraterrestrials.  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.

I. Modification/Mutilation of Supervillains as Punishment

Joe asks about the punishment meted out to Sabbac, basically an evil version of Captain Marvel who, like his counterpart, could transform into a superbeing by uttering a word of power. When Sabbac was apprehended, he was sentenced to having his larynx removed to prevent him from speaking this word. Joe’s question is whether this would be a constitutional punishment, given the 8th Amendment prohibitions against “cruel and unusual punishment.”

The most obvious parallel is to chemical castration, where convicted sex offenders, usually pedophiles, are treated with what amounts to Depo Provera, a hormone drug usually used as a contraceptive. In women, that’s basically its only use, but in men, the drug generally results in a massively reduced sex-drive. Which, for pedophiles, is no bad thing.

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard to come up with standing. Either way, despite health and civil rights concerns, this appears to be a viable sentence in the US legal system.

Fair enough. But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute is a little harder both to deal with and to hide. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be.  We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (8 to 1!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the US after Buck, most recently in 1981.

On the other hand, Sabbac isn’t your run-of-the-mill offender here. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is “cruel and unusual” is whether or not the punishment is grossly disproportionate proportional to the severity of the crime.  Ewing v. California, 538 U.S. 11, 21 (2003).  This is, in part, why the Supreme Court has outlawed the death penalty for rape cases, i.e. if no one is dead, execution seems to be a disproportionate response. Coker v. Georgia, 433 U.S. 584 (1977).

The 8th Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).  Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or violative of fundamental fairness, but in a case like this necessity goes a long way, especially because the purpose of the operation is not retributive punishment.

So then, if the only way to prevent Sabbac from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

II. Medical Treatment for Aliens

Jona asks whether it would be more proper for an alien to seek treatment from a physician or a veterinarian. This question revolves around the extent of the license under which each profession operates. Like law, the medical professions are all fairly well regulated and require practitioners to be licensed by the state. This serves both to ensure that professionals are competent, but it also permits the state to keep at least minimal tabs on those professionals in the event one of them should do something bad. It also permits the state to prohibit a professional who has engaged in egregious misconduct or is otherwise unfit to practice from doing so. There’s a lot in this, and we’ll probably return to it for a full post down the road a ways, but here’s some preliminary thoughts.

The question here is which license would provide the authority to treat an extraterrestrial. Whether or not the alien is intelligent is not actually part of the analysis, because that isn’t how the MD and DVM licenses are distinguished. Physicians are licensed to treat homo sapiens, and veterinarians are licensed to treat pretty much everything else. So at first glance, it would seem that vets would be better positioned to treat aliens than physicians, particularly aliens of the non-rubber forehead variety.

This isn’t really a matter of competence mind you: both a physician and a vet would presumably be equally out of their depth if faced with truly alien biology, if only because neither would actually have any idea what’s going on in there. Even analogizing to known species’ physiology would be impossible without a significant amount of study, and depending on the circumstances under which treatment was necessary, there might not be time for that. So if, for example, aliens crash-land and injured survivors are located, time may well be of the essence. In that case, it would probably wind up being a measure of which kind of professional could be located first.

On the other hand, physicians have two things going for them that vets tend not to. First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene.  Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense. There aren’t many people who can afford to have their dog put on a ventilator, let alone livestock, the latter of which are raised for explicitly economic purposes. There’s just no odds in it. So as a matter of practice, physicians may well be more likely to be involved, licensing issues aside.

Ultimately, the question is probably moot. If we are operating under the assumption that this is an unexpected and potentially one-off occasion, licensing matters aren’t likely to even come up. They usually only do in malpractice situations, and most stories involving emergency treatment of extraterrestrials don’t seem to permit the aliens a sufficient degree of integration with human society to file lawsuits. And if aliens are that common and integrated, the medical professions would adapt to figure out which professions would wind up being licensed to treat them. Depending on their physiology, it could go either way.  There’s more to consider about this, though, so look forward to a follow-up post in the future.

That’s all for this week. Keep sending in your questions!

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Posted in administrative law, constitutional law, mailbag

The Trial of Reed Richards

Posted on April 6, 2011 by | 23 comments

Several readers have inquired about The Trial of Reed Richards (aka The Trial of Galactus), which is a great John Byrne-era Fantastic Four storyline.  There are several legal issues to discuss here, but we’ll start with a brief synopsis of the story line.  Readers who are already familiar with the story can skip to section II.

I. The Story

In Fantastic Four #243-44, Reed Richards saved the life of Galactus, a powerful creature with a nasty habit of devouring inhabited planets.  Later, in Fantastic Four 261-62, the survivors of Galactus’s prior attacks put Reed on trial for the deaths caused by Galactus after Reed saved him, most notably the deaths of 7 billion Skrulls when Galactus consumed the Skrull throneworld.

(Actually, first the survivors sentence Reed to a summary execution, but after a brief fight between the rest of the Fantastic Four and Reed’s would-be executioners, the Watcher intervenes, and then the survivors decide to hold a trial.)

Princess Lilandra of the Shi’ar Empire appoints herself prosecutor.  Apparently Lilandra had appeared to Reed after he saved Galactus and warned him “Should [Galactus] consume any world known to us you will be in part responsible…and will be held responsible for it…to the full extent of Shi’ar law!”

Lilandra first calls a survivor of the destruction of the Skrull throneworld.  Following that, she calls innumerable survivors of prior Galactus attacks to establish that Reed knew full well of Galactus’s pattern of planet-eating.

In the face of the prosecution’s evidence, Reed pleads guilty—but not to a crime, rather to the fact of saving Galactus’s life.  Reed argues that doing so was no crime because Galactus is a force of nature and part of some greater plan for good in the universe.  To this end, the god Odin is summoned by the Watcher to testify as to Galactus’s origin, as told to him by Thor, who was told by Galactus himself.  Odin testifies that Galactus was created at the beginning of the universe, the lone survivor of the end of the prior universe, and thus Galactus is a natural force.

Alas, Odin’s testimony fails to persuade everyone.  And so Galactus himself shows up to testify that Reed’s act was “honorable and good.”  Unsurprisingly, the testimony of an alleged mass murderer whose life was saved by the defendant is unpersuasive.  So the Watcher and Galactus combine powers to summon Eternity, the embodiment of the entire universe.  Eternity links the minds of all of the creatures in the court room, allowing them to see the Cosmic Truth that Galactus is a necessary force in the universe.  In the face of such overwhelming evidence, Reed is exonerated and the Fantastic Four return to Earth.

So that’s the story.  We don’t know anything about Shi’ar law or M’ndavian procedure, so we’ll analyze the case from an earthly legal perspective.

II. The Legal Issues

A. Preliminary Issues

There are a whole host of legal issues here, but we’ll stick to the big ones.  Right off the bat we can say that the appeal of Reed’s summary execution is a kind of habeas corpus petition, essentially a demand that the authorities prove that they have the right to detain (and for that matter execute) Reed.

Next: the issue of Reed’s extradition.  Here we can take some issue.  The alleged crime (saving Galactus) occurred on Earth, Reed is a citizen of a nation of Earth, he was on Earth at the time of his forcible extradition, and it doesn’t appear that the US or UN have agreed to any kind of extradition treaty with the Shi’ar or the ad hoc Galactus-survivor court.  On the other hand, Reed seems to waive the jurisdictional issue and accept the legitimacy of the trial, which by Reed’s choice is conducted under M’ndavian procedures, “the most perfect legal system in the galaxy.”

B. The Prosecution’s Case

Now we get into the trial proper.  Lilandra’s argument is that Reed saved the life of someone he knew would go on to kill others, and therefore Reed is guilty of a crime, though the specific crime is not named.  We can’t speak to Shi’ar law, but under the US legal system Reed’s actions would probably not be a crime.  There are three main theories under which Reed might be liable: conspiracy, accomplice or accessory liability, and facilitation.  However, the first two require a level of intent that Reed did not possess (i.e. he did not intend for Galactus to go on to commit any crimes).

That leaves facilitation.  In New York, where we believe the alleged crime took place, facilitation is, in general, “a kind of accessorial conduct in which the actor aids the commission of a crime with knowledge that he is doing so but without any specific intent to participate therein or to benefit therefrom.” Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney’s Spec. Pamph. (1964), p. 328.  Here’s the definition of the most general form of facilitation:

A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.

N.Y. Penal Law § 115.00.  At first glance this looks pretty bad, and it is a closer case than conspiracy or accomplice liability.  Again, the answer turns on intent, but in this case it’s Galactus’s intent that matters, not Reed’s.

At the time Galactus’s life was saved, Galactus did not have the required intent to commit a crime.  Sure, at some point Galactus was likely to get hungry and eat a planet, but at that particular moment he did not have the intent to eat any particular planet.  Without that intent element, Reed couldn’t commit the crime of facilitation.

But even supposing Reed’s conduct would have been a crime, he may still offer the defense of necessity, which we’ll discuss below.

C. The Defense’s Case

First off, Reed’s guilty plea is completely backwards.  Rather than pleading guilty to the fact of saving Galactus’s life but arguing that his conduct was not a crime, it would make more sense to say that he stipulates to the facts but maintains a plea of not guilty.  But that’s a pretty technical point.  There are bigger problems with the defense’s case, specifically Odin’s testimony.

Odin’s testimony is a gigantic ball of hearsay problems, and we don’t think there’s any answer to it.  Odin is trying to offer the rare double hearsay: the words of Galactus as spoken to Thor as spoken to Odin.  It would also have been hearsay if Thor had been the one to testify, since there’s no exception that would apply there, either.  What’s more, all of the hearsay issues could have been circumvented since Galactus himself showed up and so could have given the same testimony properly.

Finally we have Eternity’s testimony, which basically amounts to the defense of necessity mentioned above: saving Galactus was a lesser harm to the universe than allowing him to die, even though he would go on to destroy other planets.  So even if Reed’s conduct would have been a crime, he may still claim the defense of necessity.  We’re not so sure that his actions were actually reasonable under the circumstances (i.e. an ordinary reasonable person would probably not have made the same choice), but who’s going to argue with Eternity?

III. Conclusion

The Trial of Reed Richards is a classic and enjoyable Fantastic Four story, and we’ll take John Byrne’s word for it that M’ndavian procedure and Shi’ar law were followed in the comic.  It’s interesting to note, though, that roughly the same result would probably have been achieved under US law, in some cases for the same or similar reasons.

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Posted in criminal law, criminal procedure, international law

She-Hulk # 1

Posted on April 4, 2011 by | 15 comments

She-Hulk, also known as “Jennifer Susan Walters,” is the cousin of Bruce Banner (aka The Incredible Hulk) and has served as a member of the Fantastic Four, the Avengers, S.H.I.E.L.D, and… an associate at Goodman, Lieber, Kurtzberg & Holliway, a firm which, in the Marvel Universe, is one of the most prestigious on the East Coast.  Naturally, there’s a lot of material for Law and the Multiverse here.  In fact, we’ve written a bit about She-Hulk’s issues with legal ethics before.

In issue # 1 of her third solo-series (starting in 2004), She-Hulk was working as an assistant district attorney for New York City. At this point in her life, she was basically living as She-Hulk full-time, only reverting to her Walters form when sleeping (and even then only involuntarily). During closing arguments of a trial, she was called away to help the Avengers save the world from A.I.M. The judge let her do this, because, well, it kind of needed to be done, but he then declared a mistrial when the defense pointed out that the jury could very easily be said to be improperly influenced by the prosecuting attorney saving their collective butts from imminent death. It must be said that defense counsel has a point here, and judges do, in fact, declare mistrials when it seems likely that there is some undue influence going on, something to indicate that the jury is predisposed to favor one side or the other on the basis of anything other than what they’ve seen at trial. So as far as that goes, the writer is correct.

But he’s probably missed something: if a mistrial can be granted because She-Hulk saving the world during trial would improperly influence the jury, then why wouldn’t the jury’s knowledge that she’d done the same thing on countless prior occasions be an issue? One of the things that attorneys ask during voir dire is whether the jurors know basically anyone involved in either side of the case. Having any kind of personal relationship with either attorney would easily constitute grounds to strike for cause, and there would be a good argument for striking jurors whose lives had been saved by the prosecutor. This means that empaneling a jury with She-Hulk as one of the attorneys is going to be almost impossible.

Which, unfortunately, calls into question She-Hulk’s ability to be a litigator at all. This goes beyond just an attorney being a newsworthy figure. Even those attorneys that have attained some kind of media attention for their practice don’t have all that much trouble finding jurors who have never heard of them. Kenneth Starr, the head of the legal team that investigated President Clinton, attained some measure of fame/notoriety, but he’s hardly a household name. But She-Hulk is another matter entirely. She’d be nationally and even internationally known, and she’s definitely portrayed as a celebrity. Everyone knows who she is and what she’s done, though admittedly being seven feet tall and green doesn’t help much there. Showing up as Walters doesn’t necessarily help either, as her mundane identity isn’t secret. So it’s really a question as to whether she could really practice law the way she’s shown to practice it. This is something we’ll probably need to ignore if we want to let the story go on, which is definitely worth doing, because there’s a lot of other stuff in here.

So that’s the first issues of the latest She-Hulk run. The authors get some things right, but so far the presentation of legal issues is only okay.  But to be fair the same can be said of most fictional portrayals of the legal system. We’ll continue to look at this series down the road.

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Posted in criminal procedure

ABA Journal

Posted on April 4, 2011 by | Leave a comment

Law and the Multiverse was featured in an article in this month’s American Bar Association Journal.  A big hello to our fellow attorneys, and thanks to Eriq Gardner for a great interview!

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Posted in interviews and podcasts

Mailbag for April 1, 2011

Posted on April 1, 2011 by | 9 comments

Today we have questions about sentient property and Asgard’s extraterritoriality.  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.

I. Lost Sentient Property?

Both of today’s questions from Wusheng.  The first question is about Alan Scott (i.e. the first Green Lantern) and his ring: “The ring and lantern that Alan uses were carved from a meteor called the Starheart.  This meteor … was sentient.  As a result, the ring and energy within both it and the lantern, are sentient. … [H]ow does that affect the ‘lost property’ label that you gave it?”

This was partly addressed in the comments on the Lost and Found post that Wusheng referred to, but we wanted to take the opportunity to mention another possibility.  For intelligent artifacts that are not legally considered people (e.g. either because the courts don’t recognize non-human intelligences or because the artifact fails whatever test the courts set up), it is possible that a court could treat them as a kind of animal.  So we wondered how the lost property analysis changes if one views the ring as a lost animal (albeit one that doesn’t move around much).

As it turns out, there is a particular body of law dealing with lost or stray animals, which the law calls “estrays.”  (The initial e comes from the Old French estraier. This is a common pattern in old legal terms.  See, e.g., estoppel).

At common law estrays were generally defined as “a beast wandering, or without an owner; one wandering at large, or lost, or whose owner is unknown.”  Walters v. Glats, 29 Iowa 437, 439 (1870).  However, most states (including Iowa at the time of that decision) have specific statutes for estrays.  Importantly for superheroes, the reason the beast was wandering is unimportant: “it is plainly immaterial how the animal escaped from the owner,—whether by his voluntary act, by the act of a trespasser upon his premises, or by a thief.” Kinney v. Roe, 7o Iowa 509 (1886); see also State v. Miller, 41 N.M. 618 (1937).  Relatively recently the Vermont Supreme Court held that estray laws only apply to animals of considerable economic value and so do not apply to dogs.  Morgan v. Kroupa, 167 Vt. 99, 102-03 (1997).

The sentient ring and lantern would seem to fit this definition: they are plainly lost (albeit not wandering), the owner is unknown, and they definitely have considerable economic value.  The next question is, what rights are conferred on the finder of an estray?  The particulars vary from state to state, but the general framework is that the finder acquires a qualified property right that becomes an absolute right if the original owner doesn’t show up and claim the estray after a set time period.  Since the original owner never shows up, Scott would get a complete property right in the ring and lantern.

Since many states have enacted estray statutes rather than rely on the common law, a judge might not be able to apply the estray statute directly (that’s the problem the Vermont court ran into).  However, estray law provides a template or framework that courts can use to apply to things that sit in that “special place somewhere in between a person and a piece of personal property.” Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (City Civ.Ct.1979).  So a court could use estray laws as the basis for handling sentient artifacts.

II. Extraterritoriality and the Asgardian Embassy

For his second question Wusheng writes about Thor moving Asgard to Oklahoma (Thor, vol. 3, #2-3).  “He started out just hovering it over farmland, but eventually bought out the farmland for a massively inflated price (he filled the back of the farmer’s truck with gold).  At this point, Iron Man tried to force Thor into declaring it to be under U.S. rule, but Thor knocked him around like a rag doll for a bit and Iron Man agreed to let it remain sovereign.

My question is, if we disregard the attempt by Iron Man to force it under U.S. rule, how would International Law handle something like this?  Or would Iron Man’s response (if heavy handed and more than a bit foolish) have been a more or less appropriate response?”

What the US granted Asgard was extraterritoriality.  As Iron Man explained in the comic, this is indeed a common feature of an embassy or other diplomatic mission.  The bigger issues here are Asgard’s size (i.e. just how much space is being ceded), whether Iron Man really had authority to negotiate on behalf of the US (we’ll assume he did for narrative convenience), and whether the US was willing to give territory to a foreign power that effectively just invaded the US (we’ll assume it was willing to do so because, c’mon, he’s the God of Thunder).

It’s not clear exactly how large Asgard is, but it looks to be at least several acres and perhaps as much as a square mile.  This would be exceptionally large for an extraterritorial space in the US.  The largest such space is the UN headquarters in New York, which sits on 17 acres (.026 square miles).  There are roughly 190 foreign embassies and 1200 foreign consulates in the US.  Assuming they all enjoy extraterritorial status (which is not actually the case) and occupy an average of one acre each (which is being very generous) that amounts to about 2.18 square miles.  So Asgard would likely be the largest extraterritorial space in the US and quite possibly the largest embassy in the world (the current record holder, the new US embassy in Iraq, sits on 104 acres or .16 square miles).

However, while that might be unusual for the US and for embassies, it is not unusual in other contexts.  For example, the US operates hundreds of military bases in dozens of foreign countries, some of which are quite large (e.g. Guantanamo Bay Naval Base is 45 square miles).  So it is not without precedent for a country to cede a large extraterritorial space to another country.  It would be unusual for the US to do so, but given that we’re talking about a God of Thunder here, the result seems reasonable and consistent with how international law treats embassies and similar extraterritorial spaces.

That’s all for this week!  Until next time, keep your questions and post suggestions coming in!

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Posted in international law, mailbag, property law