Are Risks of Spells Adequately Labeled in Doctor Strange?

November 14, 2016

All of the books with spells in Doctor Strange have a dangerous commonality: All warnings on risks are after the spells.

Apparently no sorcerers ever sought legal advice. Most warnings are stated before someone takes a medication or engages in a high-risk activity. Consider the rules for drugs and medical devices:

Any drug or device is misbranded unless its labeling bears all of the following information:

(a) Adequate directions for use.

(b) Such adequate warnings against use in pathological conditions or by children where its use may be dangerous to health.

(c) Adequate warning against unsafe dosage or methods or duration of administration or application.

Warnings shall be in a manner and form as are necessary for the protection of users.

Cal. Health & Safety Code § 111375.

Magical warnings placed after spells could result in conditions dangerous to one’s health. The spells do give directions for adequate use, but warnings on possible risks do not appear until after a user starts casting the spell.

Casting spells are not like operating a lawnmower. A person who injured their own foot by running over it with a lawnmower was on notice of multiple warnings in the instruction book and on the lawnmower itself. See, Bell v. Montgomery Ward, 792 F. Supp. 500, 506 (W.D. La. 1992). Moreover, lawnmowers have spinning blades at high speed in order to cut grass. This makes the risk of a lawnmower obvious. A spell is not obvious of any dangerous intent of its normal use within the knowledge of a first-time user.

There is also danger in crossing realms without adequate warning. For example, public beaches require warnings if there are bacteriological dangers that pose a risk to public health. Cal. Health & Safety Code § 115915. There are no warnings on what could be on the other side of a portal opened by a sling ring.

A major theme in the current Doctor Strange comics is magic has a cost. The issue is whether there is adequate warning for what a spell can do. Placing warnings after spells would require the wizard who wrote the book to cast a costly spell to cover damages.

Would Doctor Strange Be Contractually Required to Save Doctor Doom’s Mom from Hell?

Josh Gilliland

November 5, 2016

The Doctor Strange and Doctor Doom graphic novel Triumph and Torment presented a complex legal issue: Doctor Strange owed Doctor Doom a “boon” for surviving a mystical challenge. Doctor Doom’s boon was for Doctor Strange to help Doom liberate his mother from Hell.

That…is a big favor.

A “boon” historically was “Unpaid services, rendered in kind or labor, without being fixed in amount or time, that some tenants owed to the landowner as a condition of tenancy.” See, Black’s Law Dictionary, 9^th Edition.

The Merriam-Webster dictionary defines a “boon” as “something pleasant or helpful: a benefit or advantage.”

Doctor Strange was bound to no ordinary boon, but an adhesion contract for his personal performance for a rescue mission from Hell. There are many types of contracts, but rescuing someone’s mom from the Devil takes specific performance to a new level (or low in going to Hell).

An “adhesion contract” is a type of contract that one party has no choice as to the terms and “adheres” to the agreement. The origins of these contracts are from life insurance contracts. See, Rory v. Cont’l Ins. Co., 473 Mich. 457, 478, 703 N.W.2d 23, 35-36 (2005) for a brief history. Moreover, personal performance contracts bind a specific individual, but not heirs or assignees, because there is no adequate substitute. See, Black’s Law Dictionary, 9^th Edition.

An adhesion contract is “judged by whether the party seeking to enforce the contract has used high pressure tactics or deceptive language in the contract and whether there is inequality of bargaining power between the parties.” Vuksanaj v. Quality Bldg. Serv. Corp., 2014 NY Slip Op 32175(U), ¶¶ 2-3 (Sup. Ct.), citing Morris v. Snappy Car Rental, Inc., 84 N.Y.2d 21, 30, 637 N.E.2d 253, 614 N.Y.S.2d 362 (1994)

New York courts will not order specific performance if “it will result in great hardship and injustice to one party, without any considerable gain or utility to the other, or in cases where the public interest would be prejudiced thereby.” Conger v. N.Y., W. S. & B. R. Co., 120 N.Y. 29, 32 (1890).

Doctor Strange had to “adhere” to the terms of Doctor Doom’s “boon” to rescue Doom’s mother. There does not appear to be high pressure tactics or deceptive language used by Doom at the time of the contract (while in Hell is a different story). While Doctor Strange is the Sorcerer Supreme, there arguably was no bargaining power in accepting Doom’s boon. However, Doom did not ask for Strange to grant him power to conquer the world, but merely free his mother from Mephisto’s version of Hell.

Cynthia von Doom has a claim as a third-party beneficiary to Doctor Doom’s “boon” with Doctor Strange. The late Cynthia could prove that the contract to rescue her from Hell was made for her benefit, thus she was a third-party beneficiary. Rosenheck v. Calcam Assocs., 649 N.Y.S.2d 247, 249 (App. Div. 1996). Many states allow contracts made expressly for the benefit of a third person can be enforced by that party. See, Cal. Civ. Code § 1559. However, since Cynthia was in Hell, she would have significant challenges finding legal representation to bring an action. Moreover, it is unlikely Hell has any courts would follow lex loci contractus in applying the laws of New York to the Doom-Strange boon.

The specific performance of literally going to Hell to rescue Doom’s mother sets a high bar for hardship. Saving someone’s soul from the Devil is beyond any court of equity in granting specific performance.

Doctor Doom’s “boon” for Doctor Strange has many issues with being unenforceable, because the nature of the personal performance requires going to Hell, to the unknown of being able to rescue Cynthia von Doom’s soul, and whether Doctor Strange is violating the Logan Act for working with Doctor Doom, or whether the United States has any export control licensing on magical spells to governments hostile to the United States.

Contract issues aside, Triumph and Torment is one Hell of a good story.

Can You Exhume a Body to Get a Magical Amulet?

Josh Gilliland

November 3, 2016

Stan Against Evil is a wacky fun horror comedy from the brilliant Dana Gould. John C. McGinley and Janet Varney star as the former and current sheriffs of a small New Hampshire town that burned 172 witches at the stake. Stan’s late wife hunted demons plaguing the town, keeping Stan from an early demise as sheriff.

Stan realized he had to exhume his wife’s body, because his daughter buried his wife with an amulet needed to read a book of spells to combat the demons. The legal issue, was Stan legally justified digging up his wife?

New Hampshire case law states:

In this jurisdiction it has been held that while a dead body “is not property in the ordinary sense of the term, it is regarded as property so far as to entitle the relatives to legal protection from unnecessary disturbance and wanton violation or invasion of its place of burial. The plaintiff, notwithstanding he is neither the owner of the soil of the cemetery nor of the remains of his deceased relatives interred there, may nevertheless be authorized to invoke protection against unnecessary desecration of their place of burial.”

Lavigne v. Wilkinson (1921) 80 N.H. 221, 222, citing Page v. Symonds, 63 N.H. 17, 20.

The law favors the “quiet of the grave.” There must be “good and substantial reasons” for the disinterment of a body. Kusky v. Laderbush (1950) 96 N.H. 286, 287, citing Currier v. Woodlawn Cemetery, 300 N.Y. 162.

Prior case law has held that “the right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination.” Kusky, at 287, citing Silvia v. Helger, 67 A.2d at 28. This normally would mean determining the cause of death.

Stan could argue that retrieving the amulet was a “good and substantial” reason for exhuming his wife, because without the amulet, it was not possible to stop the demons threatening the town. As the undead witches in league with the devil is a public danger, Stan had a colorable argument for the disinterment his wife’s body (at least in 1692).

21^st Century case law does not speak to exhuming bodies for magical artifacts. A court would have to accept there was a supernatural threat in order to find “good and substantial” cause to permit the exhuming Stan’s wife.

First Rule of Alien Fight is It is Illegal Prize Fighting

Josh Gilliland

November 1, 2016

It was Fight Club meets Eyes Wide Shut in the Supergirl episode “Survivors.” The villainess Roulette ran a high dollar fight club for the elites of National City. As many like to imagine the rich and famous, they wear masks to watch aliens battle to the death. This raises the question, how could Maggie Sawyer follow the 4^th Amendment in stating charges against Roulette when arresting her?

The answer is simple: illegal prize fighting.

Roulette could be convicted of running a “pugilistic contest” in violation of California law. The Penal Code states:

Any person, who, within this state, engages in, engages in, or instigates, aids, encourages, or does any act to further, a pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, taking or to take place either within or without this state, between two or more persons, with or without gloves, for any price, reward, or compensation, directly or indirectly, or who goes into training preparatory to such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or acts as aider, abetter, backer, umpire, referee, trainer, second, surgeon, or assistant, at such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who sends or publishes a challenge or acceptance of a challenge, or who knowingly carries or delivers such challenge or acceptance, or who gives or takes or receives any tickets, tokens, prize, money, or thing of value, from any person or persons, for the purpose of seeing or witnessing any such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who, being the owner, lessee, agent, or occupant of any vessel, building, hotel, room, enclosure or ground, or any part thereof, whether for gain, hire, reward or gratuitously or otherwise, permits the same to be used or occupied for such a pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who lays, makes, offers or accepts, a bet or bets, or wager or wagers, upon the result or any feature of any pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or acts as stakeholder of any such bet or bets, or wager or wagers, shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars and be imprisoned in the county jail not less than thirty days nor exceeding one year.

Pen. Code, § 412.

Two aliens in a cage match definitely meets the elements of Penal Code § 412. Moreover, anyone who attended the fights as a willing spectator could also be convicted of a misdemeanor under California Penal Code § 413.

A defense attorney could argue California Penal Code §§ 412 and 413 do not apply to aliens, because aliens are not “people,” thus it is a legal impossibility to be prosecuted under these code sections. While the scope of Alien Amnesty Act is not clear, it likely would take a Constitutional Amendment for a “lifeform born on another planet” to be considered a “person” under the law. That being said, the Constitution would likely protect “off world aliens,” just as the Constitution protects those who are not legally within the United States. However, the issue of “person” under the law is untested with outer space aliens.

A good district attorney would also charge Roulette and her audience under California Penal Code § 597b, which prohibits illegal fights between animals. While aliens are not specifically addressed, the law protects, “any bull, bear, or other animal,” which in the broadest sense, would apply to a being not from Earth. Furthermore, those who were spectators could be prosecuted under Penal Code § 597c.

Roulette also could be charged for racketeering, as she was operating a mercenary force for kidnapping. There is no way she could escape being prosecuted in California courts or for RICO in Federal court.

Must the United States Defend Japan from Godzilla?

Josh Gilliland

October 19, 2016

Shin Godzilla follows the proud tradition of earlier Godzilla movies where the King of the Monsters stomps ashore in Japan causing massive property damage. One government character in the film opined whether the Japanese Government could ask the United States to kill Godzilla. The film even acknowledges the legal reason for the request: the Japan-US Security Treaty. This raises the issue, would the United States have a duty under our security treaties with Japan to fight Godzilla?

The Japan-US Security Treaty is known as the Treaty of Mutual Cooperation and Security between the United States and Japan (available on the Ministry of Foreign Affairs of Japan website).

The Security Treaty was created to “strengthen the bonds of peace and friendship” between the two countries in order to uphold the “principles of democracy, individual liberty, and the rule of law.” (See, Preamble to the Treaty of Mutual Cooperation and Security between the United States and Japan).

Article V of the Treaty states the following bilateral defense:

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Shin Godzilla shows Godzilla coming ashore in an evolving adolescent form and smashing a substantial amount of property in Tokyo. The strange beast returned to the sea to cool down before returning to cause more devastating property damage.

A Godzilla attack is objectively dangerous to the people of Japan. Godzilla is not an “armed attack” in the traditional sense of an invading army. The film acknowledged this fact as a reason why the US would not have a legal duty to defend Japan. However, Godzilla arguably is the personification of a walking army crushing life in his rage.

The United States would aid Japan in its battle against Godzilla, irregardless whether or not the letter of the treaty covered Godzilla attacks. The spirit of the treaty would validate the Japanese government making a request for military assistance.

There is a bigger foreign policy issue: Treaties for mutual defense are not predicated on international trade balances; defense treaties are based on the combating a common danger. A giant amphibian that breathes atomic fire would be a danger to every human on Earth. The United States would coordinate with the Japanese Defense Force in fighting the beast. Expect both militaries to hit Godzilla with everything in their arsenals.

A Godzilla attack would be reported to the United Nations Security Council because of the immediate threat to Japan. Moreover, Godzilla is a walking death machine. No country would be safe from Godzilla swimming across the Pacific and making landfall. Nations could elect to help fight Godzilla in Japan or wait to fight him in their own country.

Japan would not have to fight Godzilla alone. The United States values Japan as one of our closest allies over the last 70 years. While both countries have never faced the fictional threat of Godzilla, America would be there to fight the monster with Japan. The film’s climax does show both countries working together to fight the common threat, which was the intent of the Treaty of Mutual Cooperation and Security between the United States and Japan. Just none of the drafters wrote it expecting to fight Kaiju.

Lawyers for Hire: The Legal Issues in Marvel’s Luke Cage

Josh Gilliland

October 18, 2016

Jessica and I loved Marvel’s Luke Cage on Netflix. Here is our first podcast discussing the first three episodes of the show. We focus on Luke’s duty to warn attackers, RICO, Pop’s barbershop, and our impressions of the show. We also discuss the final issue of the original Heroes for Hire comic about Luke Cage and Iron Fist.

Was Dr. Strange Justified Killing a Possessed Man with Black Magic to Stop a Demon?

Josh Gilliland

October 12, 2016

The Doctor Strange story in the 1987 Strange Tales series by Peter Gillis, saw Doctor Strange killing an innocent person with black magic to defend the Earth. Stephen Strange has to compromise his soul in order to defend humanity with a significant body county.

The comic picks up with Doctor Strange’s life going into free fall after defeating Urthona. Strange had to destroy most of his white magic artifacts in order to save his friends Rintrah, Topaz, Wong, and Sara Wolfe. This left the Earth open to attack by ancient evils that had been held at bay by the now destroyed talismans.

A Water Elemental that once ruled the Earth with other ancients attacked Doctor Strange at his mansion. This demon had unleashed a storm that was having extreme effects on New York City, a farm in Ohio with giant worms, and a fishing vessel that had a giant hole ripped in its nets.

The Water Elemental claimed his storm would cause New York City to stop within a day, within a week drown, and within a month, an unstated horror. The demon effectively was threatening a new Great Flood on humanity. Strange Tales, volume 2, issue 2, page 9.

From Strange Tales, volume 2, issue 2, May, 1987. Penciler Chris Warner, Inker Randy Emberlin.

The demon possessed a man named Martin Fein. The Elemental told Strange how it possessed Fein and that all of humanity would “scream like poor Martin,” unless Strange stopped the demon. Strange Tales, volume 2, issue 2, page 10.

The problem: the only way for Doctor Strange to stop the Water Elemental, thus protect humanity, was to kill Martin Fein.

This…was bad.

New York allows for the physical force on another person if a “defender” reasonably believes force is necessary stop the harm caused by the other person. N.Y. Penal Law § 35.15.

The Water Elemental posed an active threat to all of humanity. New York was flooding, giant worms on the slither, and one soggy demon was beating up Doctor Strange while threatening to drown New York City. These facts objectively show Doctor Strange would be legally justified in destroying the Water Elemental.

This would also mean killing Martin Fein. While the Water Elemental was the clear and present danger to humanity, Martin Fein was just a person who was possessed. Perhaps if Doctor Strange had been at full power he could have expelled the demon from Fein. However, Strange was not at full power.

The law is silent on the legality of killing a demonically possessed person in order to save humanity. One could argue that Fein was “dead” the moment he was possessed. Moreover, if the Water Elemental was not stopped, everyone in New York City could have died, including Martin Fein.

The legal analysis is further complicated by the use of “black magic.” According to the Water Elemental, it was originally stopped by bloody human sacrifice. Doctor Strange would have to stray from “the path of purity” to stop the demon. Strange Tales, volume 2, issue 2, page 9.

The law does not allow human sacrifices. Doctor Strange was faced with a mystic “trolley problem,” that would require killing Martin Fein in order to stop demonic trolley from harming others.

A wrongful death case likely would find in favor of Doctor Strange, because of the impossibility of saving Martin Fein from the Water Elemental. On one level, if Fein was already “dead” because of the possession, destroying Fein’s body was like using a corpse to stop a runaway trolley. This is substantially different than using a live person to stop a runaway trolley.

Stopping the Water Elemental by killing Fein could be legally justifiable under the circumstances. However, this is still morally wrong. As the story continued in later issues, Doctor Strange’s “white magic” powers continued to weaken as he increased his use of black magic. Strange paid a price, which we will explore in future blog posts.

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