Book Read Free

The Law of Superheroes

Page 27

by James Daily


  7. See 16 U.S.C. § 1538.

  8. S. REP. No. 93-307, at 7 (1973). The Act itself defines “to take” as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

  9. See 16 U.S.C. § 1533.

  10. 16 U.S.C. § 1533(a)(1).

  11. Although the courts have held that animals do not have standing to sue, they have held that the Constitution permits Congress to grant them standing, should it choose to exercise that power. Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) (“[W]e see no reason why Article III prevents Congress from authorizing a suit in the name of an animal” but “we conclude that the Cetaceans do not have statutory standing to sue.”).

  12. “[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Presumably state legislatures are similarly empowered by their own constitutions. Id.

  13. See Steven M. Wise, The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and De Homine Replegiando, 37 GOLDEN GATE U. L. REV. 219 (2007) (arguing for common law development of animal rights, at least for chimpanzees and bonobos); Adam Kolber, Standing Upright: The Moral and Legal Standing of Humans and Other Apes, 54 STAN. L. REV. 163 (2001) (discussing great ape standing in terms of statutory changes).

  14. See Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. REV. 1231 (1992); F. Patrick Hubbard, “Do Androids Dream?”: Personhood and Intelligent Artifacts, 83TEMP. L. REV. 405 (2011).

  15. See NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, FINAL REPORT 45 (1978) (“Finally, we confront the question of who is the author of a work produced through the use of a computer. The obvious answer is that the author is one who employs the computer.…This approach is followed by the Copyright Office today in conducting examinations for determining registrability for copyright of works created with the assistance of computers.”). Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 HARVARD L. REV. 977 (1993) (“CONTU’s conclusion over fourteen years ago that even “computer-generated” works appear to have enough human authorship to qualify for copyright protection continues to be true.”).

  16. Andrew J. Wu, From Video Games to Artificial Intelligence: Assigning Copyright Ownership to Works Generated by Increasingly Sophisticated Computer Programs, 25 AIPLA Q.J. 131 (1997).

  17. See, e.g., Dane E. Johnson, Statute of Anne-imals: Should Copyright Protect Sentient Nonhuman Creators?, 15 ANIMAL L. 15 (2008) (proposing a limited equitable copyright ownership for animals and discussing copyright ownership by computers).

  Closing Arguments

  “Comic books aren’t just for kids anymore” has been a cliché since at least 1986, when Frank Miller’s The Dark Knight Returns was published, but it bears repeating. Comic books are an enduring art form with a long history, and we hope that this book is a positive contribution to the scholarship, criticism, and appreciation of that medium. As attorneys, we also believe strongly that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”1 As a caller on one of our radio interviews put it, “You’re giving civics lessons to people that wouldn’t get them otherwise.”

  The Law of Superheroes has been described as an “exploration of the comic book canon” and as “law school seen through the lens of comic book heroes.”2 While we have covered only a small fraction of the more than 160,000 comic books published since 19353 and have only scratched the surface of more than a dozen legal subjects, we hope that this book has nonetheless helped you to think about the complex, weird, and wonderful world of comic books in a new light. Comic books can benefit from the same kind of analysis and criticism as any other work of art or literature. While we specialize in what might be called “legal fact-checking,” there is a whole world of comics scholarship out there.4

  Although complete coverage of each of the legal topics discussed in this book would easily fill a library, our goal was not to provide a legal reference but rather an introduction to the legal system and legal reasoning. The law has a reputation for being an impenetrable maze, impossible to comprehend for anyone who is not a lawyer. We wanted to show our readers that the law is, for the most part, pretty straightforward once you get down to individual issues. While we certainly don’t recommend that anyone take this book and walk into a courtroom, we hope that the next time you read about a Supreme Court case you will feel comfortable looking up the case and reading it for yourself. And who knows? You might just find yourself wondering how the decision would affect your favorite superhero.

  1. MODEL RULES OF PROF’L CONDUCT Preamble.

  2. Jonathan Last, Invincible Heroes—Except in Court, WALL ST. J., Nov. 17–18, 2012 at C12; Cory Doctorow, Law of Superheroes: law-school seen through comic-book heroes’ lens, BOING-BOING, December 20, 2012, http://boingboing.net/2012/12/20/law-of-superheroes-all-of-fir.html.

  3. John Jackson Miller, Things Nobody Knows: How Many Comic Books Have Been Sold, Ever?, COMICS BUYER’S GUIDE (June 15, 2005), http://www.cbgxtra.com/columnists/john-jackson-miller-longbox-manifesto/things-nobody-knows-how-many-comic-books-have-been-sold-ever.

  4. See, e.g., Travis Langley, Batman and Psychology: A Dark and Stormy Knight (2012); James Kakalios, The Physics of Superheroes: Spectacular Second Edition (2009); Peter Coogan, Superhero: The Secret Origin of a Genre (2006); Scott McCloud, Understanding Comics: The Invisible Art (1994).

  ACKNOWLEDGMENTS

  The authors would like to thank Jennifer Beasley, Paul Bender, Maia Elkana, and the users of MetaFilter.com for inspiring Law and the Multiverse and encouraging its creation. We are extremely grateful to John Schwartz of The New York Times for exposing the blog to a wider audience. We thank Steve Ross, Patrick Mulligan, and the staff at Gotham for their help in turning Law and the Multiverse into this book. We also thank our employers and colleagues, particularly F. Scott Kieff, for their understanding and support of our little side project, and our families for putting up with the acquisition of more comic books than strictly necessary. And we thank Sharon Lim for her assistance in ensuring that the citations in the book conformed to the Bluebook standard. Last, but most certainly not least, we thank our readers, without whom none of this would have been possible.

  INDEX

  The page numbers in this index refer to the printed version of this book. To find the corresponding locations in the text of this digital version, please use the “search” function on your e-reader. Note that not all terms may be searchable.

  * Note: Page number in italics indicate illustrations.

  accidental powers, 123–24

  act element of crimes, 56

  Action Comics, ix–x

  actuaries, 132

  actus reus, 56, 62, 66, 68

  Adams, John Quincy, 21

  administrative law, 179–93

  and air traffic control, 186–87

  and consumer protection, 187–90

  and military operations, 181–83

  politics and administrators, 183–85

  and Superman’s taxes, 179, 190–93, 230–31

  Administrative Procedure Act (APA), 181

  admiralty law, 241

  aggravated assault, 65, 122

  air traffic control, 186–87

  airports, 100, 102–3

  Alpha Flight, 244–45

  alternate universes, 204–8, 205

  altruism, 149

  America Invents Act, 198n5, 202

  American Civil War, 21, 245, 245n11

  American Revolution, 245

  Americans with Disabilities Act, 34, 168–73
r />   animal rights, 279–80, 280–83

  animal testing, 188

  Animal Welfare Act, 188n13, 280n3

  anonymous witnesses, 4–6, 5, 6–10, 18, 47

  See also masked identities

  anti-hijaking programs, 103

  anti-mutant prejudice, 26, 31

  antisodomy laws, 29n68

  Apocalypse, 36, 262, 266, 268n14

  appropriation of likeness, 118

  Aquaman, 238–39

  arc reactor, 216

  Arising Under clause, 175

  arms control regulations, 220–22

  arrests, 100, 104–8, 105

  arson, 93

  Article I of the Constitution, 15–16

  Article III of the Constitution, 42n97

  artificial intelligences, 79, 285–86

  assault, 65–67, 69, 122–23

  assisted suicide, 60–61

  Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 202n15

  assumption of risk, 124–27, 125, 125n25

  Astonishing X-Men #4, 272n19

  Astrovik, Vance, 109

  Atlantis, 238–39, 239–40, 245

  attempted murder, 62, 130

  Attilan, 240, 243

  Austen, Jane, 267

  The Avengers

  business charter, 152

  and business law, 151, 153, 156–57, 161, 163

  and citizenship issues, 228

  and corporate liability, 165

  The Avengers (cont.)

  and foreign dignitaries, 245

  and the Fourth Amendment, 97

  and international organizations, 248n13

  and secret identities, 82–84, 89

  Awesome Andy, 285

  background checks, 49

  Bank Secrecy Act, 261n5

  banking, 266–67

  bankruptcy, 177

  Banner, Bruce, 78–79, 129–31, 170, 172–73, 188

  Barnes, Bucky, 110, 251–54

  Batman

  and arms control regulations, 221

  and contract law, 137–44, 138, 139

  and deadly weapons, 66

  and excessive force, 122, 123

  and franchises, 164–65, 166

  and liability issues, 153

  and masked identity, 259

  and merchandising, 213

  and mind control, 73

  and partnership, 156

  and patents, 196–201

  and state-actor doctrine, 1–2, 2–4

  technology of, 124n23, 213, 216, 219, 221

  and travel regulations, 219

  Batman: No Man’s Land, 50–53, 51

  Batman: Shadow of the Bat (Grant et al.), 139

  Batman: The Killing Joke (Moore), 77, 77

  Batman Incorporated, 164

  Baze v. Rees, 37

  Beast, 171

  The Beatles, 204–6, 205

  Berne Convention, 206, 206n25

  bias-motivated crimes, 31–32

  birthright citizenship, 223–25

  Bivens v. Six Unknown Named Agents, 104

  Black Bolt, 243

  Black Mask, 78

  Black Panther, 238, 243–44, 246

  blackmail, 115–16

  Blaze, Johnny, 145–46, 149

  Bluebook, xiii, xiv

  body scanners, 103

  Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 196n4

  Booster Gold (Jurgens et al.), 118

  Boostermobile, 119, 120–21

  Botchford v. Comm’r of Internal Revenue, 192n18

  bounties, 140–41, 140n2

  Brainiac, 285

  Brandeis, Louis, 99

  Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 207n27

  Brock, Eddie, 73

  Brotherhood of Evil Mutants, 63–65

  Buck v. Bell, 43, 43n98

  Bullseye, 143

  Burney, John, 273–74, 274n22

  Bush, George W., 185

  Bush, Vannevar, 181n2

  business interruption insurance, 131n32

  business law, 151–77

  and the Americans with Disabilities Act, 168–73

  and choice of business organization, 161–63

  and corporations, 157–60, 163–65, 165–68

  and limited liability companies, 160–61

  and partnerships, 154–57

  and sole proprietorships, 153

  and supervillains, 173–77

  C Corporations, 155, 159

  capital punishment, 36

  Capone, Al, 260

  Captain America, 105, 108, 110, 184–85, 216, 251

  Captain Marvel, 41

  “Castle Doctrine” laws, 123

  casus belli, 250, 250n15

  Cataclysm, Part Nine: The Naked City (Grant et al.), 139

  catastrophic losses, 132

  Central Intelligence Agency (CIA), 182, 182n5, 188

  Cetacean Community v. Bush, 283n8

  charitable organizations, 159

  charters, 151, 152

  chemical castration, 41, 42–43

  child abuse cases, 9

  children, 75

  China, 236, 250

  citizen’s arrests, 97, 106–7

  citizenship. See immigration and citizenship

  civil authority exclusions, 134

  civil cases, 110

  civil disobedience, 22

  civil lawsuits, 103–4

  civil rights

  and the Commerce Clause, 16

  and consequences of mutant rights, 32–35

  and equal protection, 23–29

  and hate crimes, 31–32

  and mutant rights, 23–35

  and substantive due process, 30–32

  civil service positions, 34–35

  civil trials, 82

  civil unrest, 133

  Civil War storyline (Marvel Universe)

  and foreign dignitaries, 243–44, 245

  and foreign embassies, 246–47

  and property damage, 131

  and superhero business organizations, 161

  and superhuman registration, 19–23, 84, 84n7, 183–85

  and supervillain prisons, 39

  Civil Works Administration, 180

  class action lawsuits, 174–76

  class discrimination, 21

  classified technologies, 201

  clinical diagnoses, 75

  Code of Federal Regulations, 223

  Cold War, 124, 188

  Colossus, 222, 272n19

  Commerce Clause, 16–17, 32

  commercial value of properties, 120–21

  common law

  and animal rights, 279–80

  and contracts, 140n1

  and copyrights, 212

  English, 103n26, 280, 280n1

  and the exclusionary rule, 103n26

  and minimum ages for criminal liability, 75n23

  and the Model Penal Code, 57n6

  compound interest, 265–69

  concealed weapons, 46, 47–48

  confronting witnesses, 6–10, 89–90

  conscientious objectors, 22

  conscription, 21–23, 21n48

  consecutive sentences, 36

  consequential damages, 144

  consideration (contractual), 142–43

  constitutional amendments, 53

  Constitutional Law

  and the confrontation clause, 6–10

  and criminal procedure, 96

  and evidence, 81

  and the Keene Act, 14–19

  and limits of government power, 50–53

  and mutant civil rights, 23–35

  and questioning superheroes’ identities, 10–12

  and right to bear arms, 44–50

  and the state-actor doctrine, 1–6

  and the Superhuman Registration Act, 19–23

  constitutional powers, 52–53

  consumer protection, 187–90

  consumer safety, 17

  contempt of court, 114n10

 
contiguous zones, 239, 239n3

  continuity, x

  The Contract (Grayson et al.), 138

  contract law

  and Batman, 137–44, 138, 139

  and bounty hunters, 140n2

  contracts for services, 140n1

  contracts with the Devil, 144–45

  and formation of partnerships, 154n4

  and meeting of the minds, 145–49

  and mistakes, 147

  and No Man’s Land storyline, 137–49

  and Spider-Man, 144

  and Superman, 141

  and undue influence, 147–48

  copyright

  and alternate universes, 204–8

  and artificial intelligences, 285

  Copyright Act of 1976, 205–6

  and duplication of works, 207n26

  and the Joker, 204, 208–10, 209, 210n34

  and registration of works, 206n23

  and superhero merchandising, 212–15

  corporations, 157–60, 158n15, 162, 163–68

  corruption, 184n8

  costumes, 4, 5, 6–10, 18, 212–13

  See also masked identities

  counteroffers, 141

  cover identities, 257–61

  Cox v. Lehman Bros., Inc., 147n15

  credibility of witnesses, 7, 84, 86, 89

  criminal law

  and actus rea, 57–69

  age for criminal liability, 75n23

  and arrests, 104–8

  and assault, 65–67

  and attempted murder, 62–65

  and conspiracies, 151

  crime prevention, 19

  and the Fourth Amendment, 96–104

  and insanity, 73–79

  and mens rea, 69–79

  mind control and illusions, 71–73

  and murder, 57–62

  and state-actor doctrine, 95

  and theft, 67–69

  and trial procedures, 108–10

  Crosby v. United States, 253n18

  cross-examinations, 7, 89–90

  cruel and unusual punishment, 35–39, 43

  cures for mutations, 44

  customs, 219

  Cyclops, 48, 66, 170, 172

  Daily Bugle, 116, 121–22, 211

  Daily Planet, 211

  damages, 143–44, 176–77

  Daredevil, 105, 108, 122

  The Dark Knight (2009), 77, 115, 200, 221

  Dawes, Rachel, 115

  DC Comics and the DC Universe

  copyrights of, xi

  and insane villains, 73–74

  and masked testimony, 84

  and property damage, 131

  and psychic powers, 67

 

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