The Law of Superheroes
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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
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