The Law of Superheroes

by James Daily

  THE

  LAW OF

  SUPERHEROES

  Praise for

  The Law of Superheroes

  “Absolutely charming. . . . Intricate, hilarious analysis of the legalities of superheroes and supervillains.”

  —Cory Doctorow, Boing Boing

  “This is the kind of beautifully nerdy endeavor that we could only have dreamed of, and it is both awesome and educational.”

  —ComicsAlliance

  “Superheroes may be able to bend and break the laws of physics, but are they stronger than the laws of the land? Using examples from superhero comic books, ranging from worker’s compensation for the origin of the Hulk to illegal searches using X-ray vision, this addictive book explains the basic principles of our legal system in a fun and accessible way, with many more images from comic books than the standard legal textbook.”

  —James Kakalios, physics professor at the University of Minnesota and author of The Physics of Superheroes and The Amazing Story of Quantum Mechanics

  “They know their audience: comic obsessives who view funny books not as a means of entertainment but as a way of life. . . . [They] illuminate the answers to questions few have dared to ask.”

  —Kirkus Reviews

  “A highly readable survey of basic legal theory and an entertaining exploration of the comic book canon.”

  —The Wall Street Journal

  “Where DC Comics meets DC v. Heller, and habeas corpus meets levicorpus.”

  —Mother Jones

  “Insightful and entertaining look at how comic book heroes would be affected by real-life laws . . . Fortunately, Daily and Davidson are neither smart alecks nor ironic, and they take their work as seriously as Batman taking on his arch-villain Bane (although they can be as witty and sly as Catwoman at her best).”

  —Publishers Weekly

  “Attorneys James Daily and Ryan Davidson have pulled it off so flawlessly in the educational and fun The Law of Superheroes . . . people who aren’t lawyers or law-geeks will learn something about the law, and lawyers and law-geeks will be thoroughly entertained at the application of familiar principles to comic extravaganzas.”

  —Popehat

  “Superpowered geekery of epically entertaining proportions . . . A must-read for a dose of good geeky fun.”

  —Shelf Awareness

  “A pair of lawyers from the Midwest have decided to ask these questions in this engaging book. Legal tomes are not known for being readable and accessible, but this one manages to be.”

  —Book Guys

  “Their website has spawned a book, The Law of Superheroes, which has to be one of the most subversive and nefarious books of the year. I came away from it feeling like I’d actually learned something about the history of American jurisprudence and how our laws actually work.”

  —Unleash the Fanboy

  “An interesting mash-up of law and pop culture that draws hypotheticals from the world of superheroes to the end of better explaining complex legal doctrine . . . this book offers a clear and creative description of basic legal concepts, disrupting the often much too self-serious tone of academic legal discourse while demystifying complex ideas that are often thought to be better left to legal experts.”

  —Law and Politics Book Review

  James Daily, J.D., (left) is an attorney and cofounder of LawandtheMultiverse.com. He is licensed to practice in Missouri and is also registered to practice before the United States Patent and Trademark Office. By day he works for the Stanford University Hoover Institution Project on Commercializing Innovation and also represents clients in a variety of intellectual property matters. He has been reading comics since he was ten, and some of his earliest and fondest childhood memories are of the Batman television series starring Adam West.

  Ryan Davidson, J.D., (right) is an attorney living in Hershey, Pennsylvania, and cofounder of LawandtheMultiverse.com. He obtained his law degree from Notre Dame Law School in 2009. Mr. Davidson cut his teeth on speculative fiction in the first grade and has been reading graphic novels since college.

  GOTHAM BOOKS

  Published by the Penguin Group

  Penguin Group (USA) Inc., 375 Hudson Street,

  New York, New York 10014, USA

  USA | Canada | UK | Ireland | Australia | New Zealand | India | South Africa | China

  Penguin Books Ltd, Registered Offices: 80 Strand, London WC2R 0RL, England

  For more information about the Penguin Group visit penguin.com.

  Published by Gotham Books, a member of Penguin Group (USA) Inc.

  Previously published as a Gotham Books hardcover

  Gotham Books and the skyscraper logo are trademarks of Penguin Group (USA) Inc.

  Copyright © 2012 by James Daily and Ryan Davidson

  All rights reserved. No part of this book may be reproduced, scanned, or distributed in any printed or electronic form without permission. Please do not participate in or encourage piracy of copyrighted materials in violation of the author’s rights. Purchase only authorized editions.

  The Library of Congress has catalogued the hardcover edition as follows:

  Daily, James. The law of superheroes / James Daily and Ryan Davidson.

  p. cm.

  ISBN 978-1-101-60041-2

  Superheroes in literature. 2. Law and literature—United States. 3. Law—United States—Popular works.

  I. Davidson, Ryan. II. Title.

  PN6714.D26 2012

  741.5’3554—dc23 2012014370

  While the author has made every effort to provide accurate telephone numbers and Internet addresses at the time of publication, neither the publisher nor the author assumes any responsibility for errors, or for changes that occur after publication. Further, the publisher does not have any control over and does not assume any responsibility for author or third-party Web sites or their content.

  To Jennifer and Liesel

  CONTENTS

  Introduction

  Disclaimer

  Legal Sources and Citations

  Chapter 1 Constitutional Law

  Chapter 2 Criminal Law

  Chapter 3 Evidence

  Chapter 4 Criminal Procedure

  Chapter 5 Tort Law and Insurance

  Chapter 6 Contracts

  Chapter 7 Business Law

  Chapter 8 Administrative Law

  Chapter 9 Intellectual Property

  Chapter 10 Travel and Immigration

  Chapter 11 International Law

  Chapter 12 Immortality, Alter Egos, and Resurrection

  Chapter 13 Non-Human Intelligences

  Closing Arguments

  Acknowledgments

  Index

  INTRODUCTION

  Does Superman violate privacy laws when he uses his X–ray vision? Does the Second Amendment protect Iron Man’s suit? Is the Joker really legally insane? If you’ve ever wondered about any of these questions—or if they just sound awesome—then this is the book for you.

  The Law of Superheroes grew out of the blog Law and the Multiverse, which applies real-world law and legal principles to comic book stories and characters. We, your coauthors, are both lawyers and comic book nerds, and this book blends those interests.

  So why comic books? Well, for one thing, they’re both interesting and popular. The main problem with a lot of legal educational materials is that they are boring. Examples include such thrilling stories as “A sells Blackacre to B, who then gives a life estate to C,” and right there, before we even get to the law, the audience is asleep. But who doesn’t like Batman? More to the point, wh
o doesn’t know who Batman is? Even someone who hasn’t read any comic books—and you needn’t have to in order to enjoy this book—will probably know that Batman’s alter ego is Bruce Wayne, billionaire industrialist. So rather than making up people who may not even have names, or using cases involving people you’ve never heard of, The Law of Superheroes uses characters you already know and love.

  Second, comic book authors have been creating new stories for decades, which gives us an enormous supply of material. Action Comics, home of Superman, hit issue #904 in October 2011, part of an almost uninterrupted run since 1938. While this is the longest-running comic in history, there are plenty of others with hundreds and hundreds of issues. Comic book authors have created incredibly detailed worlds with their own histories, so detailed that the authors have felt the need to simplify things on a number of occasions. But continuity snarls aside, this means that comic book stories are ideal for this kind of analysis, because their longevity has given them the opportunity to cover a variety of legal situations that most other works simply don’t reach. As a matter of fact, these situations often hold up remarkably well under legal scrutiny, which is a testament to the ingenuity of their authors, who have created such enormous yet cohesive and consistent worlds.

  But most important, comic books are fun and invite good-natured overthinking. Like all comic book fans, we love wondering about how these richly detailed worlds would work in all sorts of ways, whether it be the physics of Superman’s flight or his immigration status. We’ve certainly had fun doing the research for this book—tax-deductible comic books!—and we hope to share that with you.

  —James E. Daily, J.D., and Ryan M. Davidson, J.D.

  DISCLAIMER

  This book discusses the hypothetical legal implications of fictional characters and situations and should not be relied upon in real-world legal situations. Nothing in this book constitutes legal advice or implies the existence of an attorney-client relationship with the authors. If you need legal advice or representation, consult a competent attorney in your jurisdiction.

  The copyrighted DC Comics, Marvel, and Dark Horse illustrations in this book are reproduced for commentary, critical, and scholarly purposes. The copyright dates adjacent to the illustrations are the dates printed in the comics in which the illustrations were first published.

  The terms “superhero” and “supervillain” are trademarks co-owned by Marvel Characters, Inc. and DC Comics, Inc. These terms are used throughout this book solely to refer descriptively to Marvel and DC characters. The copyright and trademark rights for the comic book characters and related logos and indicia mentioned throughout this book are the property of their respective owners.

  LEGAL SOURCES AND CITATIONS

  Throughout this book you will see references and citations to legal sources such as statutes and cases. Many of these primary sources are available for free online, and we encourage interested readers to seek them out. In order to assist the reader, we present an overview of the citation format used in this book and in most legal writing, the Bluebook.1 Unfortunately, this overview is necessarily incomplete because the Bluebook format is rather complicated and resists summarization.2 Fortunately, there are free resources available online that explain the format in more detail.3

  Cases are generally cited in this form: [Case Name], [Volume Number] [Reporter] [Page Number] ([Court] [Year]). For example, United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947) shows that the name of the case was United States v. Carroll Towing Co. and it was published in the 159th volume of the 2nd edition of the Federal Reporter beginning on page 169. We can also see that it was a decision of the Second Circuit Court of Appeals made in 1947.

  When a particular portion of the opinion is cited, the specific page numbers will follow the first page number. For example, United States v. Carroll Towing Co., 159 F.2d 169, 170–71 (2d Cir. 1947). Sometimes the court may be inferred from the reporter, as in United States Supreme Court cases, which are published in the United States Reports, abbreviated “U.S.” For example, Miranda v. Arizona, 384 U.S. 436 (1966). Many state supreme courts (e.g., California and New York) have similar official reports.

  Unfortunately, citations to statutes (particularly state statutes) are less regular, but most of the statutory citations in this book are to the United States Code. The general form is [Title] [Statutory Code] [Section]. For example, 18 U.S.C. § 1111 is Title 18 of the United States Code, Section 1111.

  Most of the cases cited in this book may be found online via Google Scholar.4 Federal statutes can be found online from multiple sources.5 State statutes are typically available on the website of the state legislature in question. For other kinds of citations and sources, see Professor Peter Martin’s guide, discussed in footnote 3 or the Bluebook itself. Readers with a further interest should contact their local law library or an attorney.

  The Bluebook does not provide a citation format for comic books, so we have followed the citation format created by Britton Payne for the Fordham Intellectual Property, Media, and Entertainment Law Journal. 6 This format has been used in other published works 7 and we think it captures all of the important information about a particular comic book. The general form of the citation is: Creative Contributors, Story Title, COMIC BOOK TITLE (VOLUME NUMBER) [Issue Number] (Publisher Cover Date Month and Year). For brevity we typically only list the writer rather than the full panoply of creative contributors.

  Consecutive citations to the same source are typically abbreviated as “Id.” This is Latin for idem, which means “the same.” To find the source referred to, just go back a few footnotes until you find a regular citation.

  1. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).

  2 The current edition of the Bluebook, the nineteenth, is 511 pages long. As well-known federal circuit judge Richard Posner has said, the Bluebook “is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture….I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness—‘The horror! The horror!’” Richard A. Posner, The BluebookBlues, 120 YALE L.J. 850, 851–52 (2011) reviewing THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION [Columbia Law Review Ass’n et al. eds., 19th ed. 2010]).

  3 See, e.g., Peter W. Martin, Introduction to Basic Legal Citation, http://www.law.cornell.edu/citation/.

  4 http://scholar.google.com (select “Legal opinions and journals” and enter the case citation).

  5 http://www.gpoaccess.gov/uscode/index.xhtml and http://www.law.cornell.edu/uscode/text are two useful sources.

  6 Britton Payne, Comic Book Legal Citation Format, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1017 (2005-06), available at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1358&context=iplj

  7 See, e.g., William A. Hilyerd, Hi Superman, I’m a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007, 15 WIDENER L. REV. 159 (2009).

  CHAPTER 1

  Constitutional Law

  The prosecution has made its case: Batman responded to the Bat Signal, apprehended the crooks, and left them for the authorities. The police showed up, rounded up the incapacitated—but not dead!—criminals, made arrests, and gathered the evidence on the scene. The district attorney took the case, filed charges, and hauled the perps, who are guilty as sin and caught red-handed, in front of the judge for their arraignment…and the judge tosses out the case as a violation of the defendants’ constitutional rights.

  Huh?

  Turns out that Batman and Gotham City’s finest just ran afoul of the “state actor” doctrine, one of the cornerstones of American constitutional law, and it cost them their conviction on this one. But that’s just the tip of the iceberg. Constitutional law is a broad topic, so broad, in fact, that it is usually divided into multiple law school courses. While some constitutional law issues are not important to superheroes and supervillains, 1 co
mic book plots raise a surprising number of constitutional issues either explicitly or implicitly. These run the gamut from wearing a costume in court, to regulating superhero abilities, to banning superheroics outright.

  State Action

  Before we can get into the details of constitutional law we first have to talk about what the Constitution regulates. The United States Constitution is primarily a limitation on what the government can and can’t do, not what individuals can and can’t do. In fact, the Thirteenth Amendment, which prohibits slavery, is the only constitutional provision that directly regulates conduct by private individuals. When we talk about constitutional law, then, we are talking about the exercise of government power, which is called “state action.” Anyone who is acting with government authority or at the behest of a government agent is called a “state actor.” Government employees and officials are obviously state actors when they’re on the clock, but most private individuals, including most superheroes, are not bound by the limitations imposed by the Constitution.

  Superheroes that have some relationship with the government, such as agents of S.H.I.E.L.D. or the Fifty State Initiative, are state actors. But what about superheroes who work with the government but not for the government? A good example here is Batman, who sometimes works in very close cooperation with the Gotham City Police Department (GCPD), which often calls on his services via the Bat Signal or even, as in the Adam West TV series, maintains a private hotline between the Bat Cave and the police commissioner’s office. Could Batman be considered a state actor?

  The Supreme Court has held that private individuals can be considered state actors under certain circumstances. The reason this is an issue is so the cops can’t get around constitutional protections by having private individuals do their dirty work for them. The basic rule of thumb is that if the cops can’t do something on their own, they can’t have someone else do it for them either. There are a few different tests, 2 but we will focus on the Lugar test: first, whether the action results from an exercise of a right or privilege having its source in state authority, and second, whether the private party can be described in all fairness as a state actor?3