Was Nick Fury’s Original Sin Having His Own Foreign Policy?

Original Sin ends with several big changes in the Marvel Universe:

Thor is no longer worthy to lift his hammer Mjölnir because of a secret Nick Fury whispered to Thor;

The Orb shot Uatu the Watcher in the head and cut out one eye;

Nick Fury fired the final shot that killed Uatu the Watcher;

Uatu the Watcher threatened Fury on purpose to get Fury to fire the fatal shot;

Fury took the Watcher’s remaining eye;

The Winter Soldier took Fury’s place as the “man on the wall”;

The Watchers punished Fury by making him a chained “watcher” on the Moon, unable to take any action.

Here is my take on Nick Fury: Everything he did was right. Fury saw the world in terms of Realpolitik, which understands that protecting a nation (or in the Marvel Universe, the entire Earth), requires someone who operates in the shadows to eliminate the threats that would destroy freedom. There cannot be any detente with a foreign power, whether it was from another dimension or planet, that sought the Earth’s destruction. Fury’s actions kept interplanetary wars from erupting (and when one did with the Skrulls, Fury was prepared).

OriginalSin_NickFuryWasRight_WinterSoldierThe problem with Fury’s actions is that private individuals are not supposed to have their own foreign policies. The Logan Act (notice, not Wolverine Act), prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Fury was not sending correspondence with inter-dimensional being, but Gamma bullets to eliminate active threats to planetary security. Fury’s actions would be justified if the United States was declaring it was defending itself, thus ordering strikes on threats, but Fury apparently was writing his own orders on who to kill (unless there is some Kennedy-Era Executive Order giving Fury orders to defend the planet).

Were Nick Fury’s actions justified from a foreign policy perspective? Yes. The logic is difficult to refute, which is why the Winter Soldier took up Fury’s station as the man on the wall. However, this appears to be without any legal authority, even though it is the realistic solution to actual planetary threats operating in the shadows.

NickFury_OriginalSin_LoganActAs for killing the Watcher, Fury had a solid self-defense argument that the other Watchers ignored: Uatu the Watcher raised his hands charged with energy to threaten Fury. The Watcher’s power easily could have killed Fury. As such, Fury was legally justified to shoot Uatu the Watcher.

However, the Watchers permitting the Orb to escape while Fury was chained to the Moon for the rest of time, forced to watch without interference, appears to be an extremely flawed legal system. Letting the Orb, who committed attempt murder and torture by mutilating Uatu, run free with one of the Watcher’s eyes in his chest is not a proportional punishment. If anything, the Orb now has depth perception and possibly binocular vision, which would be personal enhancements.

The Doctor’s Dilemma…and a Doctor’s Duty

The more things change, the more things stay the same…The truth of that cliché hit me recently, when I saw George Bernard Shaw’s “The Doctor’s Dilemma.”  The play deals with a doctor who has a revolutionary treatment for tuberculosis.  He can only treat ten patients, however, and he falls for a woman who is begging him to treat her ill husband instead of one of the chosen ten.

sb10063567v-001Replace tuberculousis with ebola, change the costumes, and this play could have taken place in the past month.  One hundred years ago the medical profession was questioning how to treat tuberculosis, which was a devastating and contagious disease then.  Today, doctors are trying to figure out what experimental treatments should be used for victims of the ebola virus.  The doctors in the play were complaining about issues that are still true today – patients who pop too many pills and latch onto medical fads to take care of their problems.

The play poses the question: who is more important to save, the incredibly talented but morally reprehensible person or the very nice and ethical but otherwise average person?  The doctor with the experimental treatment also has to address the ethical question of whether he should bump somebody from the trial for the husband of the woman he loved.

I’m not touching the first question (dammit, I’m a lawyer, not a philosopher) but the second one is a legal one that I can explore.  By replacing one patient in his trial with another, the doctor is terminating the relationship with the first patient.  Can a doctor do that if the patient doesn’t want the relationship to end?

The answer is yes – but it’s not always easy.  And if it’s not done correctly it could form the basis for a claim of “medical abandonment,” which can be part of a medical malpractice claim but is also treated as a separate claim sometimes.  See McGaughey v. D.C., 740 F. Supp. 2d 23, 30-31 (D.D.C. 2010).  Doctors can terminate the doctor-patient relationship but various states have different requirements for such a termination.  In California, a doctor must give the patient due notice and an ample opportunity to secure other medical care.  See Scripps Clinic v. Superior Court, 108 Cal.App.4th (2003).  In South Carolina, a physician can’t end the relationship without reasonable notice to the patient.  See Melton v. Medtronic, Inc., 389 S.C. 641, 652, 698 S.E.2d 886, 892 (Ct. App. 2010).  Other states seem to have similar standards, with at least some making it easier over the years for the doctors to end a relationship with a patient.

TheaterI saw the play at the American Player’s Theater in Spring Green, Wisconsin.  I haven’t been to many outdoor theaters but this venue is absolutely fantastic: the trees provide a magnificent backdrop, the seating gives everyone a close view of the stage, and the bats keep the mosquitos away.  The walk up the hill to the “Up-the-hill stage” is beautiful and romantic.  I couldn’t find it on any list of the top outdoor theaters but it definitely should be!

The Doctor’s Right to Self-Defense…With a Spoon

It’s all fun and games until Robin Hood shoots an arrow at you, draws a sword, and demands your TARDIS. While not as dramatic as Han shooting Greedo, the Doctor had a right to defend himself. Using a spoon is a non-traditional choice, but well within the Doctor’s legal right.


Let’s break down the facts:

The Doctor steps out of the TARDIS

An arrow is shot at the TARDIS, going into the TARDIS about an inch

Robin demands the Doctor’s “Magic Blue Box”

The right to self-defense has existed in Common Law since the days of the fictional Robin Hood. The principle of the doctrine is described as follows:

“It is an elementary principle in criminal law that the person assaulted is justified in using so much force as is necessary to his defense. To repel a slight assault the person assaulted is not authorized to resort to measures of great violence. He will not be justified in doing those acts that are calculated to destroy the life of the assailant unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. The law limits him to such acts as are necessary to self-defense. The law does measure the degree of the force that may be used to repel the assault; and although it will not make the measurement with a nice hand and hold the person assaulted to accountability for force slightly disproportioned to the assault, yet it will hold him responsible for a clearly marked excess.”

People v. Shimonaka,16 Cal. App. 117, 126 (Cal. App.1911), citing People v. Campbell, 30 Cal. 312 (Cal.1866).

The elements of traditional self-defense are, “where from the nature of the attack, the assailed person believes, on reasonable grounds, that he is in imminent danger of losing his life or of receiving great bodily harm from his assailant, he is not bound to retreat, but may stand his ground, and, if necessary for his own protection, may take the life of his adversary.” People v. Zuckerman, 56 Cal. App. 2d 366, 374 (Cal. App.1942).

The original view of self-defense required the victim to “retreat to the wall.” However, jurisdictions modified the rule that if the victim is without fault and in a place they legally have a right to be, they could stand their ground and not need to retreat. Id.

If Sherwood Forrest was public land, the Doctor would have had a legal right to be there. Moreover, the Doctor had a right to not be TARDIS-jacked by the Prince of Thieves.

TARDIS_5392The Doctor technically did have his back to the TARDIS after having an arrow fired at him. Moreover, Robin Hood did draw his sword before the Doctor drew his spoon. Both of Robin’s actions would have been considered cause for imminent danger, whether it is being shot with an arrow or stabbed with a sword.

The Thirteenth Doctor physically confronting Robin Hood was very reminiscent of the Third Doctor’s use Venusian Aikido to throw someone over his shoulder. However, the Doctor’s use of a spoon against a sword does highlight how an ordinary object can be a weapon. That being said, a spoon is not as deadly as a sword or arrow. It’s not even a proportional response, even with a spoonful of sugar.

The Doctor was legally justified to defend himself with the appropriate force to stop the assault, and in the end, did not actually harm Robin Hood.


There is NO Way for She-Hulk NOT to Know Who Opposing Counsel is in Trial

She-Hulk issue 8 ends with our legally green hero walking into a Los Angeles Courtroom to find opposing trial counsel is a Matt Murdock. [Nevermind the fact trial is starting within weeks of a complaint on facts from 70 years ago, skipping CMC's, meet & confers, written discovery, depositions, motion practice, and a mandatory settlement conference. A wrongful death case would take months, if not years, to get to trial.]

SheHulk-CaliforniaProblem with Daredevil being opposing counsel: EXTREMELY unlikely to walk into Court and not know who trial counsel is on a case. You might be surprised at a Case Management Conference if a Big Law firm sent one of its many attorneys to cover a hearing, but every legal form in California requires a lawyer’s name and bar number on it. There has to be an Attorney of Record. Every pleading has at least one lawyer’s name and bar number at the top of the first page and ends with the lawyer’s signature. Complaints, Discovery Requests, Motions, Trial Briefs, all of those filings with a Court, are signed by an attorney. Lawsuits do not have ghost lawyers.

This issue is a tad troubling because She-Hulk does find an attorney licensed in California, as she is a New York attorney, so she could appear Pro Hac Vice, in her defense of Captain America in a wrongful death case from 1940 (the story even addresses the statute of limitations issue). We have the comic go out its way to find another California attorney for this legal requirement. The story does a good job on this point, going so far as having Jennifer Walters call Matt Murdock for help, only to have him decline without disclosing his client is the Plaintiff.

For Jennifer Walters to appear in a California Court, she would need the following, per California Rules of Court Rule 9.40, for a Court in its discretion to admit her to appear:

1. Jennifer Walters is a member in good standing and eligible to practice law in New York (CRC Rule 9.40(a))

2. She-Hulk files a verified application with proof of service per CA Code of Civil Procedure section 1013a on all parties in the case and the California State Bar Office in San Francisco (CRC Rule 9.40(c)(1).

3. The Application must contain the following:

(1) The applicant’s residence and office address;

(2) The courts to which the applicant has been admitted to practice and the dates of admission;

(3) That the applicant is a member in good standing in those courts;

(4) That the applicant is not currently suspended or disbarred in any court;

(5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and

(6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.

CRC Rule 9.40(d).

I am interested to see how the story plays out in the next issue. And just for the record, I would have been happy to have been attorney of record for Captain America if She-Hulk needed a California lawyer for her application per California Rules of Court Rule 9.40.


Boston Metaphysical Society Kickstarter Interview

Madeleine Holy-Rosing, author of the Boston Metaphysical Society (and nominated for a 2014 Geekie Award), has a Kickstarter campaign to fund issues 5 and 6 of her steampunk ghostbusting mini-series. Madeleine sat down to talk about her campaign, what is happening in BMS without any spoilers, and her upcoming convention schedule.

The Duty to Treat Rusty the Dalek POW

Doctor Who’s “Into the Dalek” presented wonderful legal issues from treatment of prisoners to the necessity defense. The episode also has huge shout-outs to Star Trek: The Next Generation, Star Wars, and Fantastic Voyage.

If they ever do another Sea Devils story, I would not be surprised if there is a Voyage to the Bottom of the Sea homage.

Rights of Prisoners’ of War to Medical Treatment

Dalek_Star_6705An injured Dalek the Doctor names “Rusty” had been damaged to the point of becoming good. Rusty requested a doctor for medical treatment after being captured by the “rebel” ship Aristotle.

After seeing the birth of a star, Rusty realized that “resistance is futile” to life. Dalek’s are driven by genocidal fascism to kill anything different from them, so making the leap to stargazing and the meaning of life is a very big leap. Especially without feet.

The Geneva Convention requires that a prisoner of war suffering from a “serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given…” Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 30.

Prisoners of War also have the right to seek medical attention. Id.

Rusty had the right to request treatment, given the fact he is a uniformed soldier (considering he is part biologic life form fused with a mini-tank), and a prisoner of the “rebels.” As such, treating would have been required under the rules of warfare.

Alternatively, there is another theory to treat Rusty: Prisoners with a serious mental illness can be treated with antipsychotic drugs against their will if the inmate is dangerous to himself or others. Ashby v. Schneck, 1995 U.S. App. LEXIS 17154, 3-4 (8th Cir. Minn. July 17, 1995).

Dalek’s are mentally altered by their computer programing to hate and exterminate others. The fact their computer program keeps their biological minds from growing, having memories, and learning, could be a condition that makes them dangerous to others, thus justifying treatment.

The Necessity Defense

A mildly troubling scene included using a human soldier as bait to save the rest of the team who had traveled into the Dalek. The ill-fated soldier shot anchors for repelling equipment into the deck of the Dalek, promoting antibodies to attack (very much like in Fantastic Voyage, instead with lasers instead of absorbing like the Blob).

Dalek_BaitThe Doctor throw an item to the soldier and said, “Swallow this.” After which the Dalek Antibodies killed the soldier. When questioned by Clara, the Doctor responded, “He was already dead. I was saving us.”

Using the soldier as bait for the antibodies would have been legally justified, while emotionally traumatic, based on the necessity defense.

A law school example of the necessity defense is you are on a runaway trolley, headed down the hill, to crash into station. Pulling out a gun to shoot a bystander to use as a break would save yourself and everyone on the trolley, but would be unjustified murder. You cannot kill an innocent to save yourself.

In the case of our soldier, there was no way for him to escape the Dalek, or the antibodies seeking his immediate destruction. The Doctor giving him a tablet that focused the antibodies solely on the soldier saved everyone else and limited the attack to the target soldier. While extremely cold, it was the right tactical decision to save everyone else and legally justified.

The Great State of Wisconsin and Me

Three years ago today I landed in Wisconsin with my family and it’s an anniversary I celebrate every year.  As I’ve made clear – here, with friends, co-workers, strangers – I love this great state.  And while I don’t want everyone to move here because I like the space, everyone should visit.  Everyone should see the amazing bluffs and valleys of southwestern Wisconsin, the beautiful farmland of central Wisconsin (and Madison’s amazing farmers’ market!), the great shoreline of Lake Michigan, and the incredible lakes and falls of northern Wisconsin.  And drink some beer and eat some ice cream, of course!

If you don’t believe me, maybe you’ll believe these guys:

That’s right!  The greatest state in the Union is using one of the greatest comedies of all time (Caddyshack will always be first in my heart, but this is a close second) to spread the word.  Do young people even get the joke here?  Of course, I didn’t get the Kareem Abdul-Jabbar joke (“I never should have left”).  It had to be explained to me by a long-term ‘Sconnie (and sports fan) that Kareem was actually drafted by the Milwaukee Bucks as the No. 1 draft pick back in 1969 and led them to a championship before leaving for the Lakers.

So yes, I’m happy to be living here – and practicing law here (or at least based here, I’m still licensed in Texas, along with Florida).  The Wisconsin Supreme Court has had a scandal or two, but it also has a proud history.

One of its shining moments came in the lead up to the Civil War.  A center of the abolitionist movement, two Wisconsin abolitionists were charged with aiding a fugitive slave in escaping to Canada in 1854.  In the appeals that followed, the Wisconsin Supreme Court declared the Fugitive Slave Act unconstitutional – the only state supreme court to do so.  In In re Booth, 3 Wis. 1 (1854), the Wisconsin Supreme Court found the Fugitive Slave Act unconstitutional for several reasons, most of which dealt with who could wield judicial power under the Constitution.  But the Court also held that the procedures under this repugnant act violated constitutional due process because there was no process.  The Court noted that under our Constitution everyone is entitled to their “day in court” – a chance to have notice of the charges against them, to question witnesses and rebut their testimony, and to present their defense.  As the Court so eloquently put it (one hundred and sixty years ago and yet we still need the reminder today):

The passing of judgment upon any person without his “day in court;” without due process, or its equivalent, is contrary to the law of nature, and of the civilized world, and without the express guaranty of the constitution, it would be implied as a fundamental condition of all civil governments.”

Just reading those words – and this opinion – makes me proud to be part of the Wisconsin Bar.  Unfortunately, a shameful footnote to this opinion (during the most shameful period in our nation’s history) is that it was overturned by the United States Supreme Court.  I couldn’t read the whole opinion – I was in a good mood right until I started skimming it – but I will share with you this quote from their opinion, which is embarrassing in its apologist attitude towards the Fugitive Slave Act (and slavery itself), especially when compared with the Wisconsin Supreme Court:

“[It] is proper to say that, in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States.”

Ableman v. Booth, 62 U.S. 506, 526, 16 L. Ed. 169 (1858).

Ugh.  I really don’t even know what to say to that, except that I’m glad that Wisconsin and its Supreme Court were on the right side of history.  And because I don’t want to dwell on the negative on such a special day, I’ll end by returning to my original point – you should all visit the great state of Wisconsin.  Hike Amnicon Falls, check out the beautiful Viroqua courthouse, eat some Bapcock Dairy ice cream, visit the Milwaukee Art Museum with its movable wings, and then head up to Green Bay to the home of football legends for a game.


Doctor Who Special with Matt Weinhold

DeepBreath_GallifreyStandsWe were privileged to have longtime Doctor Who fan Matt Weinhold join us for a special podcast on the Season 8 Premier of Doctor Who.

Jessica asked enough Doctor Who questions to qualify Matt as an expert witness on the Doctor under Federal Rule of Evidence Rule 702.

Matt and I discussed the episode Deep Breath, our thoughts on the 13th Doctor (we both count the War Doctor as the Doctor), and hopes for Season 8.

Want to hear more of Matt Weinhold? Check out his podcast Monster Party on iTunes or follow him on Twitter @MattWeinhold.

Restaurant Safety on Doctor Who

Doctor Who is back! And this time, with great lessons in restaurant safety!

The Doctor’s 13th Regeneration exploded in Deep Breath with a dinosaur, the names of the Dwarves from Snow White, and a huge homage to the Brigadier’s final line in Planet of the Spiders. Adding to the coolness, Jenny had a steampunk looking device on her hand to detect time travel. Moreover importantly, the Doctor recognized his reflection and asked himself “Why did I choose this face?”

DoctorWho_SalamanderHow to Serve Human

Let’s talk about Mancini’s Family Restaurant: The restaurant served liver for starters, brain stem and lungs for the main course, and sides of eyes and spleen. Skin for dessert, naturally.

The first law of restaurants: do not kill your guests; second rule, do not harvest their organs; third rule, do not use guests to make robots more human.

The goal of having a restaurant is winning new customers repeat business to be profitable. Homicide is an extreme deterrence to both of those goals.

A restaurant is “any eating establishment which offers food for sale to the public.” Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F. Supp. 2d 202, 207 (E.D. Pa. 2008). Moreover, a “retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though . . . the retailer has no means of knowing that the contents are unfit for human consumption.” Ayala v. Bartolome, 940 S.W.2d 727, 729 (Tex. App. Eastland 1997).

Someone who runs a public business like a restaurant is “subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495, 506 (Cal. App. 4th Dist. 1987), citing Peterson v. San Francisco Community College Dist., 36 Cal.3d at p. 807, quoting Rest.2d Torts, § 344.

In a nightmare case where a massacre took place at a restaurant, summary judgment was granted for the restaurant, because the “restaurant’s duty to take reasonable precautions to protect patrons from reasonably anticipated criminal conduct of unknown third parties did not encompass the burden to protect against once-in-a-lifetime massacres. The likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of the restaurant’s nonfeasance in not providing security did not facilitate its happening.” Lopez v. McDonald’s Corp. (1987, Cal App 4th Dist) 193 Cal App 3d 495, 238 Cal Rptr 436, 1987 Cal App LEXIS 1913.

Clockwork_Blue_0045Mancini’s is not a case where a third party caused harm to someone going out for lunch, but an elaborate trap to murder people for their organs. It is not a restaurant, but a criminal enterprise organized by Clockwork robots from the 51st Century that crash landed on Earth over 65 million years ago on the Marie Antoinette. While tacking health and safety code violations to the criminal complaint would be gravy (provided late 19th Century England had such laws), the Clockwork Robot’s plan is like a criminal conspiracy to commit murder (if a robot can be charged with murder).

Now, did the Doctor push the Clockwork Robot out of the escape pod? This would make the Thirteenth Doctor (Counting the War Doctor) a lot like the Sixth Doctor, who killed the Androgum Shockeye in the Two Doctors. If the Doctor did push the Robot out of the escape pod, it was done under the defense of others to save his Companions from being killed. Moreover, killing a robot arguably is not the same as killing a person, thus not murder, but destruction of property.

Unless all robots go to Heaven, which makes our Clockwork Robot a lot of Pinocchio.


A White Knight Settles with His Patent Troll

RenFairKnightI’ve written previously about Adam Carolla’s battle with the patent troll that had sued his podcast.  Well, now he has settled with that company.  The case was set to go to trial in just a month (cases often settle as the parties evaluate the expense that goes into those last pre-trial preparations).  And, unfortunately, the terms of the settlement are confidential.

Just a month ago, the plaintiff had actually tried to dismiss its lawsuit against Carolla (plaintiffs can chose to drop a lawsuit although, depending on when they do so, they may or may not be able to bring another lawsuit at a later date on the same issues).  But Carolla was not going to go quietly in the night.  He had already filed counterclaims against the plaintiff (that’s when the defendant countersues the plaintiff – sometimes for issues related to the same fight started by the plaintiff, sometimes for completely unrelated issues) and he wasn’t going to dismiss them.

These type of counterclaims often happen in patent infringement lawsuits – the plaintiff claims that the defendant is violating the plaintiff’s patent, but then the defendant files a counterclaim to have the court rule that the patent is actually invalid.  The plaintiff may then drop the lawsuit in order to avoid having a court rule that its patent is invalid, because such a ruling would prevent it from filing suit against other parties on that same patent.

So this lawsuit is over – dismissed before a court could hold whether the plaintiff’s patent is actually valid.  (While the US patent office does their best to determine whether patent applications are up to all required standards before granting an actual patent, the system isn’t perfect so there are several procedures that can be used after the patent is issued to challenge whether the invention is actually entitled to a patent.)

Kudos to Adam for fighting as long as he did, even though I would have loved to see him in court.  I wish I knew what the settlement terms were and it will be interesting to see if this plaintiff tries to sue other defendants for infringing this same patent.