The Law of Superheroes

by James Daily

  When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States. 20

  So Bucky probably couldn’t complain to a court, but luckily that’s not the last stop in the process. Here’s an explanation of the process from a federal circuit court case:

  The [extradition] statute establishes a two-step procedure which divides responsibility for extradition between a judicial officer and the Secretary of State. In brief, the judicial officer, upon complaint, issues an arrest warrant for an individual sought for extradition, provided that there is an extradition treaty between the United States and the relevant foreign government and that the crime charged is covered by the treaty. If a warrant issues, the judicial officer then conducts a hearing to determine if “he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty.” If the judicial officer makes such a determination, he “shall certify” to the Secretary of State that a warrant for the surrender of the relator “may issue.” It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited. 21

  Thus, Bucky (perhaps via his friends in high places) could petition the Secretary of State not to extradite him to Russia. If Russia doesn’t like the decision, its only recourse is diplomatic because extradition treaties generally don’t have enforcement provisions.

  So as long as we’re willing to assume (1) that Russia and the US have an extradition treaty on Earth-616 and (2) that Bucky exhausted his political capital already, then it’s entirely possible for Bucky to be extradited under the circumstances presented in the comic.

  1. The laws for private parties contracting across international borders is actually pretty well settled and mostly comes down to “choice of laws,” i.e., the parties deciding which nation’s law they’re going to use. Once that choice is made, the remaining issues can be settled by that country’s domestic legal system.

  2. See, for example, the nuisance that the Somalians have made of themselves off the Horn of Africa.

  3. The definitions of territorial waters, contiguous zones, and exclusive economic zones come from the 1982 United Nations Convention on the Law of the Sea, which has been ratified by most of the countries in the world. Before the Convention was created, different countries claimed different territorial waters, ranging from two to six nautical miles.

  4. See, e.g., Stan Lee, Jack Kirby et al., FANTASTIC FOUR ANNUAL 1 (Marvel Comics September 1963), in which Namor unsuccessfully invades New York City as a reprisal against the destruction of the original site of Atlantis by nuclear testing.

  5. Stan Lee, Jack Kirby et al., Beware the Hidden Land!, in FANTASTIC FOUR 47 (Marvel Comics February 1966).

  6. With the exception of spaceships launched from a terrestrial country, which are under the jurisdiction of the country that launched them, much like a ship at sea.

  7. 12 Q.B.D. 273 (1884).

  8. The controversial doctrine of universal jurisdiction has some of its origins in this concept.

  9. 18 U.S.C. § 7(6).

  10. Britain declared war on France about a month and a half after France and the American colonies formalized their alliance.

  11. The Union actually threatened to declare war against Great Britain if the latter entered the war on the side of the Confederacy, and the historical record suggests that this threat was not an idle one.

  12. The various incarnations of DC’s Justice League seem mostly to be more or less informal groups of superheroes who decide to work together, but are not generally organized by any government or governmental agency, and tend not to have any kind of official status.

  13. Then again, 2012’s The Avengers and the Marvel Cinematic Universe generally really starts to make it look like a domestic military organization again. S.H.I.E.L.D. is an inter-story and inter-medium ambiguity.

  14. But it still doesn’t excuse the fact that the writers took a few decades to make up their minds as to what was actually going on.

  15. A Latin phrase that means, roughly, “justification for acts of war.”

  16. See list attached to 18 U.S.C. § 3181, available at http://www.state.gov/documents/organization/71600.pdf.

  17. See, e.g., Martin v. Warden, 993 F.2d 824, 828 (11th Cir. 1993).

  18. Crosby v. United States, 506 U.S. 255 (1993) (holding that Fed. R. Crim. P. 43 permits trials in absentia in at least some cases, declining to address constitutional issue); Gallina v. Fraser, 278 F.2d 77 (1960) (permitting extradition of a defendant convicted in absentia in Italy).

  19. Martin, 993 F.2d at 829.

  20. Neely v. Henkel, 180 U.S. 109, 123 (1901).

  21. United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997).

  CHAPTER 12

  Immortality, Alter Egos,

  and Resurrection

  Hob Gadling was drinking in an English tavern in AD 1389 when he made the comment that “Death is a mug’s game.” 1 Dream and Death, of the Endless, happened to hear Gadling’s comment, and at Dream’s request, Death agreed to let Gadling live until he wanted to die. Dream approached Gadling for a drink and the two arranged to meet at the same bar at the same time on the same day—a hundred years in the future. Gadling thought it was a joke, but a hundred years later, there he was.

  That, my friend, is how you do it. Neil Gaiman et al., Men of Good Fortune, in SANDMAN (VOL. 2) 13 (DC Comics February 1990).

  Gadling is a recurring character in Neil Gaiman’s epic Sandman run, and one of the characters that most directly addresses one of the problems with immortality: How can one retain one’s fortune over the years without people figuring out that one is immortal? There are a number of reasons one might wish to keep such a thing secret—pitchforks, torches, etc.—but completely reinventing one’s self every few decades defeats one of the obvious advantages of immortality, i.e., the ability to accumulate wealth over a much, much longer period of time than we mere mortals.

  In this chapter, we take a look at some of the legal issues surrounding death and dying. First, whether there are any inherent problems with abnormally long life spans. Second, the problems associated with creating and maintaining successive cover identities. Finally, we’ll examine the implications of resurrection on inheritance and property law.

  Successive Identities

  “The days of our years are threescore years and ten; and if by reason of strength may be fourscore years, yet is their strength labour and sorrow; for it is soon cut off, and we fly away.” 2 Or, at least, that’s been the received wisdom since longer than anyone can remember. And because death after seventy or eighty years is such a fundamental part of the human experience, the difference between living two hundred years and not dying at all is, from the perspective of the legal system, pretty trivial.

  Turning back to Gadling, one of the problems he ran into was people starting to get suspicious about his preternatural agelessness. This required him to disappear off to Scotland or the East Indies on a number of occasions, to return as his own long lost “son.” This gets at one of the main issues that an immortal who doesn’t want his immortality to be widely known will have to face: the creation and maintenance of successive cover identities.

  The idea of an alter ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. 3 This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

  Hob Gadling explains some of the practical details of amassing wealth and creating new identities as an immortal being. Nei
l Gaiman et al., Men of Good Fortune, in SANDMAN (VOL. 2) 13 (DC Comics February 1990).

  Legally, there is no reason Jekyll could not do this. A property owner may dispose of his property in any legal way that he sees fit, and giving it to himself, while usually pointless, is not illegal. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter ego that led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e., if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

  So the problem is not only in the creation of an alter ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

  The relationship between one’s real and cover identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g., Bruce Wayne becoming Batman, things are fairly straightforward. Wayne doesn’t usually run errands as Batman, so his cover identity doesn’t really need legal papers or even identification. But creating a new mundane identity to live and work in, as one would need to do if faking one’s own death or moving from one mundane identity to another, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, and undercover operations, but there are two main facts about this that present problems for superheroes. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, outside of witness protection these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e., they are not intended to fully or permanently replace the original identity.

  The basic problem then is that to create a new identity without government authorization requires the commission of a number of federal felonies, potentially including making false immigration statements, identification document fraud, perjury and numerous related offenses under state law. 4 And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification that a superhero wanting to create a new mundane identity would need to forge. Creating successive false identities all but requires one to engage in illegal activities. See, for example, the discussion of immigration law in chapter 10. Hob Gadling actually comments that maintaining these identities has gotten harder with the bureaucratization of society in the twentieth century.

  Even if our hero can stomach breaking the law in this way, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order. Al Capone was eventually brought down not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion.

  Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy either, as the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even sticking to cash transactions is no solution: (1) one cannot move more than ten thousand dollars in cash across the border without declaring it; (2) banking transactions over ten thousand dollars in cash in a single day must be reported to regulators. 5

  So even though money must technically be “dirty,” i.e., the proceeds of or used for some unlawful activity, 6 in order for disguising the origin and ownership of such funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort that could easily trigger an IRS audit. As the Joker observed, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” 7 So again, it seems that some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law. But even breaking the law in this way is no guarantee of success.

  So basically, if an immortal wants to disguise his immortality, he’s going to have a pretty tough time doing it. Much of what he’ll need to do is illegal, and even the technically legal things are often so shady as to attract unwanted attention. This is not to say that it’s impossible, but most of the people who have successfully pulled off something like this usually tend to lie low.

  Immortality and the Law

  Generally speaking, the legal system is set up to deal with people dying on a regular basis, and even someone living past a hundred does odd things to societies in which inheritance is important.

  But when people start living much past that, especially if they aren’t aging normally, things can get really weird. This is important for comic book stories, because even ignoring the fact that time passes somewhat strangely in comic book universes (i.e., the origin story of various characters has been “time shifted” forward—Tony Stark was once imprisoned in the Vietnam War, then the first Gulf War, and now it’s Afghanistan) when compared with how time passes in the “real world,” comic book universes are full of characters that live for a long time, potentially forever. 8 Marvel has Wolverine, Apocalypse, Deadpool, and Dr. Strange, and that’s not even the whole list of arguably human characters. DC has Ra’s al Ghul, Wonder Woman, and quite possibly Superman as well. Is there anything illegal, as such, about being immortal?

  Not as such, at least not in the real world or in comic books that aren’t Logan’s Run, 9 and there aren’t any laws against reaching any particular birthday either. But there are a few legal doctrines for which immortality could prove quite problematic. The biggest one has to do with property ownership. The way things are now, when a person buys a piece of real estate, he can generally assume that he has what is called a “fee simple,” i.e., complete freehold ownership of the land with no termination condition. 10 This is frequently referred to as having “clear title,” and it’s so important that banks will generally not sell a mortgage for a property where clear title is in question. 11

  As it turns out, the legal system is actually pretty invested in making sure this happens, and the device that ensures it is the bane of first-year law students everywhere: the Rule Against Perpetuities, frequently abbreviated as the RAP. To explain the RAP, we’re afraid we’ll have to turn to a non-comic-book example.

  Consider a family dairy farm. Say mom ’n’ pop are sentimental about the farm, so they leave it to their son with some conditions, like so: “To our son, we leave the family dairy farm, but if he ever stops using it as a dairy farm, the property will go to our eldest grandson.” This means that the son will not have a fee simple to the land, 12 because there is a condition wherein he might lose it. But the grandson can do whatever he wants with it: the condition stops with the son’s ownership.

  But what if they said: “To our son, we leave the family farm, but if he or any of our descendants ever stop using it as a dairy farm, the property will go to the next-eldest descendant.” That’s quite a bit more restrictive, because while the first example would theoretically permit the grandson to turn the farm into a subdivision (or a horse ranch or whatever) because the condition only applied to the son, the latter example does not. This will make it a lot harder to use the property as anything but a dairy farm, even if the property can’t be used that way anymore (e.g., if zoning regulations prevent it or cows go extinct or something).

  The RAP dates back to early-modern England, when it was realiz
ed that aristocratic families were doing exactly this sort of thing, usually in order to preserve the family fortune. Aristocrats would place restrictions on the use of their lands in an effort to keep them from being parceled up and sold off. There were insanely complicated systems of shifting interests that sometimes endured for centuries. So much real estate was so encumbered with conditions on inheritance that it was becoming impossible to transfer good title to vast swaths of the countryside. In response, the courts imposed a rule that no interest was valid unless it could “vest,” i.e., become a present interest in a living person, within twenty-one years after the death of some person alive when the interest was created. As a practical matter, this meant that you’re allowed to create interests that vest in your kids or their kids, but you can’t perpetually encumber your property such that your distant descendants won’t have clear title to the property.

  Many states have modified or abandoned the RAP, as hereditary land dynasties are no longer fashionable, and simply administering the RAP was a pain in the neck. Law students are still taught it, but as often as not it’s a form of hazing, in which professors inflict obsolete doctrines on students because, dammit, they had to learn it, so you do too. The RAP comes up rarely in practice.

  However, an immortal could, to put things mildly, completely screw this up. How? Because the RAP says that you can’t create an executory interest that vests more than twenty-one years after the death of someone currently alive. Because our immortal isn’t ever going to die, he can use himself as the “measuring life,” and so set up an impossibly complex set of shifting interests, all of which would be permitted by the RAP.