The Law of Superheroes

by James Daily

  The way this would work would be for an immortal to buy a piece of property, and then sell it to someone else with a condition, which, if violated, would automatically shift ownership to some other person, possibly the immortal himself or herself. Because it is impossible to grant better title to land than that you yourself possess, the condition would not go away if the property were sold to a third party. Ergo, any conditions placed by an immortal would remain on the property forever.

  This is clearly less than ideal, and though most superheroes would presumably not be unpleasant about this, even a noble superhero who wasn’t paying attention 13 could find that he’d inadvertently frozen a community in time by accidentally preventing any change in the land use. Even worse, one can easily imagine a far-sighted villain like Ra’s al Ghul using this power for evil, if the writers were big enough law geeks. World domination by conquest is admittedly impressive, as is world domination by buying it all over time. But it’s far, far more insidious to wind up controlling the whole world because you used to own it at some point and nobody ever thought that weird clause in the real estate contract would ever come back to haunt them.

  So, in short, while there is no inherent problem with being immortal, property law pretty much assumes that everyone is going to die at some point, so the presence of an immortal being could pretty seriously screw things up. It’s almost strange that no writer seems to have done much with this yet.…

  Immortality and Compound Interest

  But wait a minute. Why does a character need to rely on property ownership to accumulate wealth? Why can’t he just use the magic of compound interest, frequently described as one of the most powerful inventions in human history? It turns out that this isn’t nearly as workable a solution in practice as it is on paper. There are two main reasons for this. The first is historical, and the second economic, but together they conspire to make living off your interest a little harder than it sounds.

  The History of Banking

  Deposit a thousand dollars in a bank today, make 3 percent a year, and in a hundred years you’ll have $19,218.63. Not bad, eh? That’s the theory, anyway. But there are a couple of historical problems with trying to do this for really long periods of time. The first is that the oldest currently operating bank is Monte dei Paschi di Siena, founded in Siena, Italy, in 1472. Which is a long time ago, to be sure, but for someone like Apocalypse or Mr. Immortal, that’s not actually a very long time. There is one other bank that’s been around for that long—also Italian—but the modern banking system really only seems to have gotten started in the seventeenth century. So for characters that live a really long time, compound interest on deposit accounts hasn’t been available for most of their lifetime.

  The other main historical problem is long-term stability. The financial industry is remarkably stable over a period of a few years, and the past few decades—2008 notwithstanding—have shown that they can be pretty stable over the intermediate term, but over the really long term? Much, much rarer. There were only a few periods further back in history that had something like our modern financial system. For example, ancient Roman banks seem to have been pretty sophisticated in historical terms, but they have all, for one reason or another, collapsed. Similarly, during the height of the Umayyad Caliphate, it was possible to write a check in Morocco and cash it in Islamabad, but the Caliphate was overthrown and its successors were not always in charge of the same territory. Since deposit insurance is a creature of the twentieth century, this means that if you are an immortal who lived through the end of a major civilization or even a decent financial panic, there was a good chance that you’d lose everything you’d kept in banks. So if you were depending on your deposits to keep you going, well, that’s maybe okay for a few decades, but not on the century timescale, let alone millennia.

  To make matters even worse, for a huge chunk of history, the charging of interest was considered ethically problematic. The prohibition against usury still applies in the Muslim world, which is why Islamic banking looks so deeply strange to Western audiences. Western banks used a rather complicated legal arrangement to get around usury prohibitions in the Middle Ages, but the plain fact is that interest-bearing savings accounts the way we think of them really didn’t exist until the twentieth century. You could certainly invest your money, but now we’re talking about something different from simple compound interest.

  Inflation

  But even if there was an unbroken continuity of depository institutions that has existed or is likely to exist for more than a few centuries, there’s another problem: inflation.

  To make a reference outside our normal genre, consider Mr. Darcy of Jane Austen’s Pride and Prejudice, who is said to have had an income, i.e., money he didn’t have to work for, of £10,000 annually. Which even in current terms is not a terrible income, but most Brits with a job make more than that. But when the book was published in 1813, this represented a sum closer to £6.5 million in today’s currency, which is substantially cooler. But it also goes to illustrate just how badly individual units of currency have inflated over the years. One observer suggests that the effective inflation rate from 1913 to today is about 3.5 percent a year, something in the neighborhood of 1,929 percent over the whole time period. So someone trying to live purely off interest is going to have one hell of a time keeping up with that. They’d need to make 3.5 percent just to break even, so they’d need to make about 7 percent total just to have something to live on unless they had a massive principal investment to start with.

  If you can find a relatively safe investment (i.e., a place you can put money that will give a return without you needing to work at it, that makes 7 percent a year), consistently, for more than a few years in a row, you are, without question, the most brilliant financier in the history of the world. The only way to make more than that is to either (1) own stuff yourself, be it land, a factory, a business, intellectual property, whatever, or (2) get a day job. Rich people choose the former; most people choose the latter, usually out of necessity. But the idea that you can just have a bunch of money, let it essentially sit, and expect to make a decent living for any serious period of time is problematic. Throughout history, the people in the world who have gotten rich have not done so on the basis of interest. Inflation, combined with long-term instability, makes that kind of thing truly implausible.

  Don’t believe it? Think about the royal houses of Europe. If compound interest works the way it’s supposed to under the myth, they should be the richest people in the world. And make no mistake: the royal houses that have managed to survive are pretty well off. But they’re far from being the richest people in the world, and a lot of their current wealth comes from marrying people who got wealthy in other ways, e.g., oil barons, shipping magnates, etc. One might realistically ask if they’d be wealthy at all if they’d had to rely solely upon their own fortunes. Others are officially supported by national governments, which is an awesome gig if you can get it, but does tend to preclude the kind of hiding-in-the-shadows, living-a-life-without-obligations thing that Hob Gadling and most other immortal characters tend towards. 14

  One might be tempted to say “ah, but what about the stock market?” Unfortunately, it presents many of the same problems: stock markets haven’t been around much longer than banks (the NYSE only goes back to 1817), they suffer the same long-term instability problems, and positive returns on one’s investment are impossible to guarantee. Inflation applies to securities exchanges too. Adjusted for inflation, the historic peak of the DJIA was just over 1,000, and in the early 1980s would have actually been at a level deep into the plunge of the 1930s! What’s more, stock markets and their participants tend to be even more heavily scrutinized than banks these days—complying with SEC regulations is a significant burden on publicly traded corporations and their directors—so in some ways they’re an even worse choice for an immortal trying to lay low. You can open a bank account without attracting any regulatory scrutiny, but securities trading is a
lot harder to disguise for very long. No, buying stock on public exchanges is no substitute for private ownership, nor is it a plausible way of putting compound interest or something like it to work in the very long term.

  Immortality and Social Security

  Almost every American old enough to read has at least heard of Social Security, and with good reason: it’s been a key part of the United States’ social safety net for three quarters of a century. The program is so ubiquitous that Social Security Numbers (SSNs) have become one of the primary ways that United States citizens identify themselves in transactions with the government.

  That alone poses a problem for an immortal character trying to lay low, as SSNs are associated with birthdates, and each time an SSN is used in an official transaction, there’s the chance that someone will notice a birthdate that’s way older than it should be. More than that, though, one’s SSN is intimately connected to one’s legal identity. It is a unique identifier and without one (or a Taxpayer Identification Number), the federal government isn’t necessarily going to be totally sure that you exist, bureaucratically speaking. It’s how taxes are tracked, and it’s very difficult to engage in even the most routine government transactions without one. If you’re curious, the statute that creates them is 42 U.S.C. § 405.

  All of which conspires to make the SSN an essential part of constructing an alter ego, as discussed earlier in this chapter. Of course, forging them is a crime, and just running the numbers there’s a three percent chance that whatever number you make up is going to be currently in use by someone else (though it’s actually even greater than that given the rules for valid SSNs).

  The other completely ubiquitous part of Social Security is taxes. 15 Social Security taxes are imposed by the Federal Insurance Contributions Act, better known as FICA, and codified at 26 U.S.C. §§ 3101–3128. At the moment, the Social Security tax rate is 6.2 percent of gross income, plus another 6.2 percent contributed by employers, so really 12.4 percent. 16 The self-employed must pay both halves out of their own pocket, hence self-employment taxes, but the difference is more one of perception than reality.

  Either way, if you make money by working, i.e., you earn a wage or salary, the government wants its cut, and the IRS doesn’t much care who you are: even Superman can expect a visit from the taxman. 17 If you’re earning money, and it’s more than a couple of grand a year, the IRS will eventually find out. So unless a character is independently wealthy—which means he’ll be paying taxes in other ways, just not FICA—it’s going to be very, very hard to evade Social Security taxes for very long.

  Then there’s the question of benefits. Right now, every American over the age of 67 (lower in some cases) can collect old-age benefits. Fair enough. But the actuarial tables for calculating benefits, taxes, budgets, etc., are predicated on most people dying within a decade of their seventy-fifth (or so) birthday. Wolverine could theoretically have been collecting Social Security—assuming he got his citizenship status worked out—almost since the program was inaugurated!

  This is problematic for two reasons. One, when the government is cutting you a check every month, that’s one more month where someone might notice that you’re still around. A situation in Japan where hundreds of elderly people collecting old-age pensions were discovered to be missing, sometimes for decades, illustrates that while the machinery of bureaucracy does have a lot of inertia, people living beyond their nineties is still quite unusual and does raise red flags. 18 So a character who is either immortal or has a longer than normal lifespan will almost certainly get noticed sooner or later. Whether or not the character minds is dependent upon the facts of their particular story, but this could be problematic for many characters.

  But second, Social Security was intended as a sort of last-resort measure to prevent the elderly from becoming destitute. It doesn’t really work that way anymore, as those people who have to rely solely upon Social Security pretty much are destitute, and plenty of people who don’t need the money at all still collect benefits for decades, but that’s still the theory. The discovery of a group of people who aren’t going to die at all, or who are going to collect benefits for fifty plus years is likely to encourage Congress to take a long, hard look at establishing some kind of limitation on the ability of people to collect benefits forever. Depending on just how bad the budgetary situation is at that time, this could be as little as a fix to exclude the truly immortal or as draconian as limiting benefits to three decades for everyone. But some kind of congressional action does seem pretty likely, and the existence of immortals among us might just be sufficiently distressing to the American population to give Congress the motivation it needs to actually do something about the government’s bleeding balance sheet.

  The fact that even in the comics that contain the largest number of immortal beings there are perhaps a few hundred in the entire world is not likely to mitigate this fear either. The American media and populace are terrible at issues of scale. This, of course, is just one more reason immortals might want to keep their existence hidden, which means taking pains to conceal their longevity and identity. Simply declining to accept the benefits is probably insufficient to head off congressional action too, since not every immortal is likely to be so charitable.

  Resurrection, Return, and Probate

  Death is notoriously less than permanent in comic book stories. The basic rule of thumb is that unless we actually see a character die, and their body afterward, they aren’t dead, and even then writers can get creative. 19 But most of the time, the story is that the character wasn’t actually dead, but was just hiding, or in hibernation, or in a different dimension, or stuck in the pattern buffer, or whatever.

  This doesn’t present any significant problems for the legal system, which already knows how to deal with people that are presumed to be dead but turn up later. A person who is legally absent, i.e., a person whose whereabouts are unknown for quite some time, will generally be presumed dead after a few years. Five to seven is pretty common, though interestingly for the citizens of Metropolis, New York, gives you only three. 20 It usually takes a court proceeding to get someone officially declared dead in the absence of a body, and in general, the courts will presume that a person is alive until there is clear evidence to the contrary or state statute operates to force presumption.

  That last bit is actually of interest. Pretty much every state has a statute saying that if one is legally absent for a specified period of time, a court can declare one to be dead. But a few states also have a provision that exposure to a “specific peril of death” can permit a court to rule one dead before the specified period expires. 21 As superheroes are exposed to specific perils of death basically all the time, and would not generally be suspected to be dead in the absence of such a peril, it seems likely that a court, or at least a genre-blind one, would be willing to rule on a superhero’s death pretty quickly. Which makes things a bit complicated if they aren’t actually dead.

  Southern Farm Bureau Life Ins. Co. v. Burney, 590 F. Supp. 1016 (E.D. Ark. 1984) is the big case here. In 1976, John Burney of Helena, Arkansas, ran into financial difficulties. On June 11, he was involved in a traffic accident on a bridge crossing the Mississippi River and managed to clamber over the railing and down the bridge into the river, where he swam to Mississippi instead of back home to Arkansas. He caught a bus and spent the next six years living in Florida as “John Bruce,” complete with a new wife and child, neither of whom had any inkling of his former life. He was discovered when he returned to Arkansas in 1982 to visit his father. Unfortunately for him, Burney’s wife and business partners had filed claims on various life insurance policies taken out on him and received benefits totaling $470,000. The wife, who may have been annoyed at finding out that her husband had completely abandoned his family and set up another one, contacted the insurer immediately. The insurer was annoyed and promptly sued Burney into next Tuesday.

  Here’s where things get interesting for whack-a-mole-type supers: Bur
ney’s wife and business partners, who had no knowledge of Burney’s whereabouts and had assumed that he had died in the accident, wound up a total of $470,000 richer. The judge let them keep that money, theorizing that “the policy of the law is to encourage settlement of litigation and to uphold and enforce contracts of settlement 22 if they are fairly arrived at, not in contravention of law or public policy.” 23 Burney wound up being found liable for $470,000 plus interest—whether or not he paid is another matter—but the people who received property as a result of his death were permitted to keep it.

  The implication here—and there really isn’t much case law beyond this, because most people who are presumed to be dead are actually dead—is that if a person dies or is presumed to be dead, courts are not going to be very eager to disturb the settlement of property distributed via inheritance or devise unless there is a clear statutory reason to do so. Many states have statutes addressing this subject, but they’re all over the place.

  •Cal. Prob. Code § 12408 specifies that a person who reappears after being presumed dead may recover any of his estate which has not been distributed, but property that has been distributed is only recoverable if it is “equitable under the circumstances,” and not at all if five years have passed.

  •Va. Code Ann. § 64.1-113 provides that property which has not been distributed and property which is in the hands of someone who received it as a result of the presumption of death shall be returned to the person presumed dead, but bona fide purchasers of estate property are allowed to keep it.