Category Archives: Comic Books

A Lawyer Goes to Big Wow! ComicFest

Posted on by
Reply

Josh&VegasPG_9746

Josh with Vegas PG. She might have been a Star Fleet Jag Officer.

Big Wow! ComicFest was May 18 & 19, 2013.

It was the first purely comic convention I had attended in years (My first “geek” convention was Time Con 1985).

I can say no legal conference I have attended has had any attendees in cosplay.

Granted, the “document review attorney” or “certified computer forensic expert” costumes might not be as entertaining as Power Girl or Conan the Barbarian.

Boston Metaphysical Society

I picked up the first two issues of Boston Metaphysical Society and talked with the author Madelene Holly-Rosing. It is a 19th Century steampunk detective story involving paranormal activity in 1895. The story is a six-part mini-series with fictionalized historic figures of Alexander Graham Bell, Thomas Edison, Nikola Telsa and Harry Houdini (founders of B.E.T.H.). Think Steampunk Ghostbusters & The League of Extraordinary Gentlemen rolled into a well-written detective story. Truly a good read.

BostonMetaphysicalSocietyThe legal issues that came to me while reading the story, would be how to limit the personal liability for the founders of B.E.T.H. Granted, the 1890s was a relatively safe era to engage in clandestine operations of intellectual titans with a low threat of lawsuits. However, any competent attorney would want to form a corporation to limit personal liability of the founders. Moreover, they would want adequate insurance, if metaphysical insurance can be purchased.

It also goes without saying having Alexander Graham Bell, Thomas Edison and Nikola Telsa all have intellectual property they would want to protect. All should consider Non-Disclosure and Non-Competitive Agreements. An attorney would also want to look at the Sherman Antitrust Act of 1890 to ensure Edison and Telsa do not create a monopoly on electrical power.

Around the Exhibit Hall

BigWowExhibitHall_9770

The Exhibit Hall had many talented artists, writers and dedicated cosplayers. The Exhibitors also were markedly different from the legal technology shows I have attended, because it is easier to sell collectables on an exhibit hall floor over six-figure software.   BigWowExhibitHall_9774

I was very impressed with the Exhibitors. They had the art of commerce down, with credit card transactions on iPads and Blackberrys.

They were also a lot of fun to talk to.

BigWowExhibitHall_9744Panel Discussions 

The panel discussions included everything from the History of TV Horror Hosting to Drawing Without Paper, to making cosplay costumes and a tribute to Bob Wilkins.

I had proposed my Legal Geeks seminar on Han’s Legal Justification for shooting first, Firefly & Contract Law, Red Shirts & Assumption of Risk, plus other topics, but never heard back from the organizers. Next time.

There’s Only One Way to Rock

RockBand_9752I was very impressed that the attendees really knew how to rock out. There were some amazing singers who took the mic in Rock Band, gathering a crowd while they played. Two of them were truly awesome as they sung Don’t Stop Believing and Under Pressure.

RockBand_9755Until Next Time

I enjoyed attending Big Wow! ComicFest to see what makes a show outside of the legal/eDiscovery world successful. Both have a lot in common with having an exhibit hall and panel discussions. However, the “geek” conferences have far more creative ability to “think outside the jury box” when it comes to innovation.

Legal conferences will always have a serious tone, because that is the nature of the practice of law. Clients come to lawyers because they need real help. With that said, those in the legal world should look at ways to capture the creative energy of a comic book convention in planning a conference.

The Constitutional Law Issues of Iron Man 3

Posted on by
Reply

This post has spoilers on Iron Man 3, so cease and desist all reading if you want to be “surprised” in the the movie.

IronManShirt_7744_edited-1Iron Patriot & The War Powers Act

The Iron Patriot presents a “small” Constitutional Law issue, if you consider ordering military action on foreign countries small. Arguably, the President would have to inform Congress every time the Iron Patriot was sent into “hostilities or imminent danger” within 48 hours, because he is 1) an Air Force Officer and 2) Carrying out Presidential orders in the defense of the United States.

The War Powers Act of 1973 reporting requirements in Section 4 state:

(a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of  Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.

Based on the Iron Patriot’s status in the military and reporting to the President, Congress would need to be alerted each time the Iron Patriot was sent into a military engagement.

The bright side of deploying the Iron Patriot is it is unlikely any military action would last long enough to require Congress to authorize the use of additional funds. The downside is use of the Iron Patriot runs the risk of starting a war if a foreign country is not keen on a US super soldier flying in and blowing things up on Presidential orders.

Congress would also have to consider whether a “force bill” that authorized the use of the Iron Patriot against foreign threats would be required. Such force authorization could mirror the ones issued against the Barbary Pirates or War on Terror. However, domestic use of the Iron Patriot runs the risk of violating Posse Comitatus Act, since James Rhodes is in the Air Force.

The Vice President & Impeachment

IronManMiniIron Man 3 presents a large Constitutional issue: the Vice President has the loveable qualities of loyalty demonstrated by Aaron Burr and John Calhoun.

This loyalty was not to country, by to his own self interest that rose to the level of high crimes and misdemeanors.

And we are not talking about lying in a civil deposition.

One of the “big reveals” in Iron Man 3 is the fictional Vice President is part of the criminal conspiracy to kill the fictional President of the United States. This includes multiple acts of terrorism and the destruction of Air Force One.

The only motive alluded to is the VP’s young daughter or granddaughter is missing part of her leg. Apparently, the entire motive for a coup d’état and large scale murder is to grow a child a new leg below her knee. Huge body count to give a child a leg.

The fictional Vice President’s crimes raise several procedures for his prosecution. The film ends with his arrest, but simply arresting the Vice President is not enough: The Vice President would have to be impeached to be removed from office.

Impeachment of the President or Vice President is defined under Article II, Section 4 of the Constitution, which states the President or Vice President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The articles of impeachment against the Vice President would have to be drafted by the Judiciary Committee in the House of Representatives, voted on by the full House, and then the case tried in the Senate with the Chief Justice of the Supreme Court presiding over the trial. House members would act as the prosecutors.

Treason is defined under Article III, Section 3 of the Constitution, which states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

IronManFlightThe Vice President would have a strong case of treason against him for supporting a terrorist organization, which would be giving aid to the enemies of the United States.

Moreover, there are additional high crimes against the Vice President, such as the criminal conspiracy to assassinate the President and destruction of government property (Air Force One).

Other crimes carried out by AIM would also be attributable to the Vice President, because they were carried out in furtherance of the conspiracy. This would include kidnapping, torture, illegal medical experimentation on human beings, along with the many deaths in the terrorist attacks.

Once the Vice President was removed from office, the President would then have to nominate a candidate for Vice President, who would need to be confirmed by a majority vote in both Houses of Congress. (See Section 2 of the 25 Amendment to the US Constitution).

However, none of this would be as exciting as Iron Man flying around and blowing things up. Simply put, the Chief Justice’s gavel is not like the Hammer of Thor.

And that would be pretty awesome.

Flash Gordon Inflicts Emotional Distress All Around

Posted on by
Reply

“Get Ready to Kick Some Flash”

That’s right.  The slogan for Flash Gordon, the epically bad 1980 sci fi movie, was actually “Get ready to kick some Flash.”  That alone causes me emotional distress.  Shouldn’t Flash be the one doing the kicking – not the one being kicked?  And that was the best slogan they could come up with?  That’s the slogan my son would have picked!

Flash GordonAs a kid I never saw the Flash Gordon movie, but we had the book version of the movie (I have no idea why) and I loved pouring over the pictures of Ming the Merciless, the bizarre birdmen, and the women in beautiful dresses.  (I was a kid and we only had CBS - I was pretty hard up for entertainment!).

 

My baby brother, however, is fascinated with the movie and insisted that I watch it with him over the holidays this year and I was blown away by how fantastically awful it is (the soundtrack by Queen is its only redeeming quality).  Surely Mystery Science Theater 3000 spoofed it, right?  The hero who can defeat the bad guys if he has a football-shaped object in his hands.  The evil overlord with a ring of seducton.  The comically slow battle between the spaceship and the feeble bird men.  I’m just impressed that Timothy Dalton was able to overcome that movie and go on to become Bond (for a little while).

(No need to watch the entire movie – the trailer is much better…)

So while the comic strip was good enough to inspire Star Wars, the movie version was awful.  But a bad movie isn’t grounds for a lawsuit (unless you’re one of the financial backers).  One scene in the movie, however, is similar to an issue that’s come up in lawsuits several times.  In a handy plot twist, Flash Gordon is executed by order of Ming and poor Dale has to watch him die.  Later, of course, it turns out that Flash’s death was faked and he still lived!  So the question becomes, could Dale sue somebody for believing her loved one was dead?

She could – although she probably wouldn’t win.  Over the years people have sued for the distress they suffered when informed that loved ones had died when, in fact, their loved ones hadn’t died.  These suits have met with mixed success.

In one suit, where parents were informed that their teenage daughter had died in a car crash, the Kansas Supreme Court held they couldn’t recover because they couldn’t show that the emotional distress they suffered was solely because of the mistake about the daughter’s death.  Instead, the distress may have also been caused by the accident itself and their daughter’s problems afterwards.  See Hoard v. Shawnee Mission Medical Center,  233 Kan. 267, 278, 662 P.2d 1214, 1222 (Kan.,1983).

On the other hand, a New York court allowed a daughter to recover for the emotional distress suffered when a hospital  mistakenly told her that her mother had died.  The key to the court’s liability in that case, however, was the hospital’s duty to advise the proper next of kin of the death of a patient.  See Johnson v. State,  37 N.Y.2d 378, 379-380, 334 N.E.2d 590, 59, 372 N.Y.S.2d 638, 639 (N.Y. 1975).

In all of the sitautions, however, the suit has to be brought by an immediate family member.  While Dale clearly had strong feelings for Flash, they weren’t even dating, much less married or otherwise related.  So Dale, like the rest of us, is out of luck.  We all suffered emotional distress watching Flash Gordon (or, in her case, watching Flash “die”), but we can’t sue anybody for the pain we suffered.

 

Marvel Comics: A Sad Tale of Copyright Lost

Posted on by
Reply

Kids dream of being a superheroI’ve always loved comic books.  I grew up reading my dad’s old superhero comics from the ’60s, Mad Magazine, and Archie (Jughead is awesome), and I still love tough girl comic books like Wonder Woman, Fray, and Buffy Season 8.  After all, who doesn’t dream of being a superhero?   But I am not a comic book geek.  I can’t talk to you about storylines and before a few weeks ago the only comic creators I could name were Stan Lee and Joss Whedon.

Thanks to Marvel Comics: The Untold Story, however, I have learned more about the history of comic books - and have come to appreciate comic books more – in the past few weeks than in all the decades before that.

Real comic book fans will mock me for this, but before I read this book I didn’t realize how different Marvel was from DC in the way Marvel’s superheros lived in real cities (like Spiderman living in New York) and dealt with real enemies (Captain America fighting the Nazis).  In addition, they were all part of the same universe, often interacting with and impacting one another.  Marvel was also viewed, especially during the late ’60s, as much more hip and relevant to pop culture.  Stan Lee became an icon on college campuses and to other artists such as Mario Puzo (who had originally been very dismissive of him) and Federico Fellini.

Stan Lee and Marvel also changed the way the writer (e.g., Stan Lee) and artist (e.g., Jack Kirby) interacted.  Instead of providing artists with full scripts, Stan would just give the artists a plot synopsis (or sometimes they’d come up with the plot lines together) and the artists would then go draw the story – determining page-by-page pacing and deciding plot details.  The full story would then be returned to Lee, who would then fill in the dialogue.  This came to be known as the Marvel Method.

Comic book illustrator

The artwork was amazing too.  Jim Steranko, for example, used his role as artist for the Nick Fury comics to explore art – using geometry tricks and eventually quadruple-page spreads that meant you had to buy two copies of the comic and lay them together if you wanted to appreciate exactly what he did.  Jack Kirby and Steve Ditko, along with many other Marvel artists, also showed that illustrating comics was a true art form and one that allowed for plenty of social commentary.  Unfortunately, I read the book on my Kindle so I wasn’t able to see any actual examples of the artwork described in great detail in the book.  I haven’t had a chance to look at a hard copy of the book yet but I hope it actually includes some of this amazing artwork!

Legally, however, the Marvel saga – and that of comic books in general – has a sad side.  Under U.S. law, all the brilliant superheros that Stan Lee, Jack Kirby, Steve Ditko and others created never belonged to them because of a cruel exception to the general copyright rule.

In general, copyright protection is established the moment an artistic work is created in fixed form (i.e., the moment a picture is drawn or words are written on paper).  Copyright protection means that the work created automatically becomes the property of the author of the work (who is usually the creator).  Under Section 106 of the 1976 Copyright Act, the owner of the copyright (usually the author), has the exclusive right to do certain things (or has the right to authorize others to do these things), such as reproduce copies of the work or prepare derivative works based on the original creation.

Unfortunately, there’s an exception to this general rule that the creator is the legal author of a copyrighted work.  In the case of “works made for hire,” it’s the employer (in this case, Marvel) that is the author of the work.  Section 101 of the copyright law defines a “work made for hire” as, among other things, a work prepared by an employee within the scope of his or her employment.  Without authorship, the actual creator – Stan Lee, Jack Kirby, Steve Ditko – has no right to control what happens with the characters and does not profit from their use. (Stan Lee, of course, has profited more than the others because of his close affiliation with Marvel, which has given him a cut of various deals, but that’s apart from the profits he should have received as the creator of so many superheroes).

It is this cruel exception to the general copyright rule in the U.S. that doomed so many comic book artists – and not just at Marvel.  For example, Jerry Siegel, who co-created of Superman, was treated horribly by DC Comics, depsite how much they profited from his creation.  Stan Lee himself even commented once on how the comic book market is the worst market for creative talent, in part because the creator doesn’t own his own creations.

And Roy Thomas, who became Marvel’s editor-in-chief after Lee was promoted to publisher, said that he tended to reuse old Marvel superheros in his work because he knew Marvel would own anything he created and he hated the thought of them – not him – making money off of TV shows or movies based on characters he created.

Different comic book artists and writers have tried to wrestle back control of their creations over the years but they’ve generally been unsuccessful.  After Jack Kirby died his estate sued Marvel to recover the right to the iconic heroes he had created, such as the Hulk and the Fantastic Four.  In 2011, however, a federal judge granted summary judgment in favor of Marvel because it found that Kirby’s work for Marvel was “work for hire.”  In other words, despite creating what came to be known known as The House that Jack Built, Kirby and his family had no right to profit from his Marvel creations beyond what he had initially been paid (a fraction of the billions made off of his characters by Marvel and Disney).

So reading this book has made me appreciate comic books much more than I ever had before.  On the other hand, it also  makes me sad for all the brilliant artists who have seen their works taken away from them because of the “work for hire” exception to the general copyright rule.  But I appreciate the fact that they did what they did, for so little, so that so many could appreciate their work.

 


Being a Super Hero Only Looks Good in Comic Books

Posted on by
Reply

Many people hear the call of service and want to wear body armor and a cape. However, this is a profoundly bad idea. The law strongly disfavors ordinary citizens becoming vigilantes. Moreover, we have no known aliens with amazing powers, individuals enhanced by government experimentation or human hybrids with other humanoid species flying around major US cities.

With that said, who doesn’t like comic book super heroes? And for all the super lawyers out there, what legal issues are there in fighting crime after being given a magical amulet?

Vigilantism is defined in Black’s Law Dictionary as, “The act of a citizen who takes the law into his or her own hands by apprehending and punishing suspected criminals.”

“Vigilantism” is also defined under case law as “unreasonable self-help action by citizens that tends to disrupt the administration of the criminal justice system.” State v. Johnson, 1998 NMCA 19, P 15, 124 N.M. 647, 954 P.2d 79.

So, what does this mean for all of our comic book super heroes? Let’s review the different types of heroes to see who is a vigilante vs those engaging in law enforcement.

Criminals Are a Cowardly Lot…

Comic characters who take up arms and hunt criminals are with little question vigilantes. Examples on one extreme would be the Punisher and the other Batman.  Both lost family members and took up arms to stop criminals.

There are obvious differences between the two, besides Marvel and DC. Punisher kills, where Batman has rules against killing (unless you are Darkside in Final Crisis). However, while the Punisher is not operating under any color of law besides avenging “justice” by killing criminals, Batman at least has tacit consent by Gotham City’s use of the Bat Signal to call for Batman’s help (perhaps showing Batman is deputized by local law enforcement).

Brilliant, Well-Funded & Armed

Tony Stark and Hank Pym are prime examples of the brilliant scientists who engineer super-human powers for themselves.

Some of these characters are defined in role playing games are “high tech wonders” and others “altered humans.” The key is whether they are using technology or has science changed their bodies.

For Stark his power is an advanced body armor that serves as a weapons platform; Pym his “Pym Particles” who he used to shirk or grew, depending on the decade and which identity Pym was using to fight crime (Ant Man, Giant-Man, Goliath, Yellow Jacket, or Wasp).

Granted, Batman could also fall in this category given his utility belt and advanced weapons. However, Batman uses more of his body through training as a weapon, where heroes such as Iron Man have built full blown body armor.

Iron Man falls in an interesting category, because the character was originally his alter ego’s body guard. Additionally, with Tony Stark being a Cold War weapons manufacturer, Marvel had a character arguably who was different than a vigilante. The issue would turn on whether Iron Man was operating as Stark’s body guard or going beyond such services (or a private citizen developing his own foreign policy arguably during the Armor Wars, something else frowned upon under the 1799 Logan Act).

Granted, Tony Stark eventually went public with his secret identity and held such positions as Secretary of Defense and Director of SHIELD. Under these positions, Stark was acting within the “police powers” of the Government.

Government Sponsored Heroes

The [fictional] United States Government has created and sponsored various super heroes. The most notable of course being Captain America.

Pursuant to Article I, Section 8 of the United States Constitution, Congress can “raise and support armies…” In a world where villains (especially if sponsored by a foreign power) can blow up buildings, Congress raising an army of super humans would not be out of the realm of possibility.

These heroes might have Posse Comitatus Act issues without specific legislation, but if authorized by Congress, would be the most “legal” form for a super hero to be operating within the law.

State-sponsored heroes would also need to follow the US Constitution and our laws on search, seizure and arrest. With that said, how many times in the comics has a super hero read a villain their Miranda rights?

A spin on this would be Green Lantern. While not authorized by Congress, Hal Jordan was selected by a Green Power Ring created by the Guardians of the Universe to protect Sector 2814. In essence, Green Lantern is a cosmic police officer. While the Guardians are free to create whatever selection criteria for the Green Lantern Corps, there would still be jurisdictional issues of a “alien” government setting law enforcement terms within the United States (or any country on Earth).

However, if a giant red alien shows up and starts eating buses with school children, elected officials probably will let that detail slide.

You’re Not Just Anyone

Superman is perhaps the most classic super hero of all time.

Superman arguably started out as a vigilante for a brief period of time, but since he at first represented “truth, justice and the American Way,” he was a symbol of working within the system.

This was also evidenced in such classics as Frank Miller’s The Dark Knight Returns (where Superman worked for the American government, which had banned heroes) and New Frontiers (which also banned heroes).

On the flip side, if a “person” can jump tall buildings in a single bound and is faster than a speeding bullet, society would accept his help. I mean, who would stop him?

If There Were Heroes…

If there were super heroes, the world of Powers probably would be the most on point on what that society would look like, complete with fans treating the “powers” like sports figures or movie stars. There would be regulation if not an outright ban on being a hero, because society would not tolerate mega-humans blowing up schools or throwing cars at people.

However, we will discuss Who Killed Retro-Girl another time.

 

Bam! Kapow! Can Stan Lee (Media) Defeat the Mighty Mouse?

Posted on by
Reply

“Disney always wins.” According to my copyright law professor (Hook ‘Em, Horns), that’s the first rule of copyright law. A quick search online shows that there are 188 cases where Disney is a party and copyright issues are mentioned.  I haven’t checked all of those cases but I’ll assume that my professor was right and that Disney generally wins.

But now Stan Lee Media, Inc. - the defunct company co-founded by that master of marvels and superheroes - has decided to take on the mighty mouse. I’m currently obsessed with Marvel, thanks to Avengers being released on DVD, the new Iron Man trailer, and the new book on the history of Marvel (which I’ll be discussing next week). So now Stan Lee Media is suing Disney. What’s next?

Disney

It looks like a tough case.  Stan Lee Media is claiming that, just two weeks before signing a contract with Marvel, Stan Lee himself signed a contract with Stan Lee Media assigning the rights to all of the characters he had created (or would create) to it.  So Stan Lee Media is claiming that it – not Marvel – owned the various Stan Lee characters that have made billions for Disney, including Spider-Man, the X-men, and most of the Avengers.  It’s claiming that Disney owes it $5.5 billion for copyright infringement as a result of Disney’s use of these characters.

This kind of dispute about who promised what and when is tough enough, but Stan Lee Media faces a bigger hurdle: res judicata.  Stan Lee Media has made this claim about Lee assigning his characters to it first before and lost (although that decision is being appealed).  The doctrine of res judicata says that parties can’t relitigate issues that were or could have been raised in a previous lawsuit that is final.  Because Disney purchased its rights from Marvel, it would stand in Marvel’s shoes and can say that this issue has previously been litigated.  As a result, it would argue that Stan Lee Media is barred from pursuing these claims again.

Stan Lee Media is trying to avoid this barrier by claiming that Disney’s own conduct since 2009 is actionable.  Stan Lee Media argues that this suit should therefore be able to continue even if Stan Lee Media loses its appeal of the previous case.  Disney isn’t scared, though, stating that this lawsuit is without merit.  And now, just like in Lee’s own comic books, we’re going to have to wait for the next issue of this comic saga to find out if Disney will prevail once again!

Movies That Make Lawyers Think “Wait a Minute…”

Posted on by
Reply

Lawyers always see the world through code sections and case law.

For anyone related to a lawyer, married to a lawyer, or dating a lawyer, their beloved attorney is constantly analyzing their surroundings. This can make a simple night of watching a movie a challenge.

Take these seemingly harmless movies and what lawyers think of while watching them:

Harry Potter and the Sorcerer’s Stone:

Harry Potter spent the first 10 years of his life living in the cupboard under the stairs. Where was child protective services?  While the Charles Dickens style child suffrage built character for a later hero, how was that even legal in modern Great Britain?

Wait a minute….they can’t make me live under the stairs…

At this point, the lawyer’s mind starts thinking about the specific language of the relevant code sections.

For example, a California attorney may stop watching the movie 10 minutes into the film to look up “child abuse” under the California Penal Code.

The attorney may focus on Cal Pen Code § 273a(a) and wonder if Harry living under the stairs meet the language of “willfully causes or permits any child to suffer.”

Would the the verbal treatment by the uncle be enough to prove unjustifiable mental suffering?

 

As the series continues, lawyers start thinking about other issues.

For example, whether there was any class action litigation against potion manufacturers is never addressed in the films. Would the litigation be similar to a pharmaceutical case? Lawyers start thinking about that as soon as one student falls in “love” with another due to Amortentia, Cupid Crystals, Kissing Concoction, Beguiling Bubbles or Twilight Moonbeams. On a fundamental level, how were any of those remotely legal and commercially available?

Toy Story 3 & Torture:

Did Toy Story 3 inadvertently sanction torture?

Barbie breaks Ken into disclosing how Buzz Lightyear was re-set by 1) knocking Ken out; 2) tying Ken up; and 2) ripping up his vintage clothes until Ken betrayed the dictatorial Lotso.

The lawyer who starts thinking about this might grab their iPad and look up Torture in their West Black’s Law Dictionary App. This is what they would find:

torture, n. (16c) The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure. — torture, vb.

The question remains, is destroying vintage clothes enough to cause intense pain to the mind to extract information to be torture?

What do jury instructions say on torture?

Is there any case law on emotional torture by destroying property?

How do I explain this fact pattern to the research attorney on the phone?

Captain America and Back-Pay?

Captain America: The First Avengers ends with Steve Rodgers waking up in New York City after spending nearly 70 years in ice.

Would Captain America be entitled to Army back-pay for nearly 70 years, adjusted for interest, inflation and cost of living increases since World War 2 under the Missing Persons Act, 37 U.S.C. §§ 551-558?

 

The true Geek Lawyer (and a few JAG Officers) would spend a lot of time researching case law dating back to World War 2 for the answer.

It’s a Wonderful Life

Henry F. Potter kept the Building & Loans’ money that Uncle Billy lost.

Does Potter cover up the extra $8,000 somehow?

Does the bank notice an $8,000 deposit days after the town rallied to save George Bailey?

Is Mr. Potter later tried and convicted for grand larceny?

Think Like a Lawyer

Attorneys are taught in law school to “think like a lawyer.”  A side effect of such training is dissecting scenes of movies for their legal issues. Many of us have learned not spoil a perfectly good evening by asking these questions to non-attorney friends and family.

The Greatest Comic Book Sagas (For a Lawyer) Issue 1

Posted on by
Reply

One of the most interesting comic book mini-series for a lawyer is DC’s Cry for Justice. The story was a 7-part series that touched on many legal and ethical issues for lawyers.

Let’s review the series from a lawyer’s point of view.

Cry For Justice

DC’s “Cry for Justice” was written by James Robinson and art by Mauro Cascioli.  The story begins after the highly confusing “Final Crisis.” What was not difficult to understand about “Final Crisis,” was it ends with Batman and the Martin Manhunter dead [apparently in Batman's case, who had been thrown back in time, and Martin Manhunter was brought back to life in Blackest Night] after planet Earth went through a reality-bending-cosmic-meat-grinder.

Green Lantern (Hal Jordan) does not take this well. The series opens with Green Lantern debating Superman, Wonder Woman and other members of the Justice League. Green Lantern no longer wants to wait for villains to do harm, but to track down evil before they can do harm.

Hal Jordan reasons that modern villains were no longer simply scared into the shadows because the good guys were good. Waiting for the bad guys to simply show up to cause problems had cost too many lives. It also had enslaved almost the entire human race and nearly destroyed all of reality in Final Crisis. It was time to take preventative action.

It does not take someone with a Political Science degree to see the first few pages of Cry For Justice are a debate on the Bush Doctrine.

Super Heroes & Preventive War

Most of the members of the Justice League do not agree with Green Lantern. The debate ends with Hal Jordan and Green Arrow leaving the Justice League’s space station saying, “You want a league. I want justice.”

There are other heroes who felt the same as Hal Jordan across the planet. Virtually all were inspired to find “justice” based off the deaths of others.

There are even some “enhanced interrogations” of villains by heroes to get answers.

And all roads eventually led to a villain named Prometheus stealing advanced technology.

Unfortunately for our heroes, seeking justice did not go according to plan.

A Smart & Well-Armed Bad Guy

The villain Prometheus had a suit of armor programed with how to defeat virtually all known super heroes.  His cruelty knew few limits, including making a throw rug out of a dead super hero’s body. After a long con, we learn Prometheus impersonated Captain Marvel (Shazam!) and gained access to the Justice League space station with the rest of the heroes [the real Captain Marvel was found as his mortal self, tied up with his lips sewn shut with wire so he could not say Shazam. Yes, wire.].

Prometheus managed to defeat almost everyone in the Justice League, including ripping off Red Arrow’s arm (Green Arrow’s son).

During the traditional bad guy monologue outlining his plans, we learn there are devices across the planet that would encase cities in force fields and launch them across time and space. The goal was for a fate worse than death knowing that loved ones were forever missing.

Prometheus demanded to be set free in exchange for the codes to stop the devices. And just to prove he was really evil, the attack had already begun in Green Arrow’s home Star City during the fight with the heroes and his capture. However, Star City was not launched across time and space; it was destroyed with 90,000 dead, including Green Arrow’s granddaughter.

Realizing they could not stop the devices from killing more, Green Arrow convinces the rest of the Justice League to let Prometheus go free in exchange for the codes to stop the doomsday weapons. The heroes stop a massive death toll in the millions. The cost of “victory” was letting the bad guy get away.

Is It Justice? 

It looks like evil won, with the bad guy safely gloating and plotting in his fortress between worlds and dimensions.

Much to Prometheus’s surprise, Green Arrow appears and puts one arrow through Prometheus’s skull.

Only one word is said by Green Arrow after killing Prometheus: Justice.

 

What Lawyers Think About When Reading A Cry for Justice

Cry For Justice has wonderful legal issues. It was extremely well written with excellent artwork. James Robinson was masterful at incorporating thoughtful ethical issues in a very timely story.

The first obvious ethical issue is that heroes do not normally kill bad guys. Those upholding the law do not normally execute the villains. It looks more like “revenge” less like “justice.” The entire concept of “due process” is a chalk outline on the floor when the good guys go around killing criminals.

However, there are the threats to a country that exceed any formal court proceeding. Someone who can destroy cities, leave 90,000 dead, and hide outside of reality as we know it, falls into that group without question.

Let’s take a look at history for anything close to a precedent.

Japanese Admiral Isoroku Yamamoto planned the attack on Pearl Harbor.

He was the commander-in-chief of the combined fleet of the Japanese Navy.

And after Pearl Harbor, we wanted him dead.

 

When the US learned of a flight Yamamoto was going to be on, the Air Force shot down Yamamoto’s plane.

The mission was code named “Operation Vengeance.”

The military planners were not shy in how they felt about Admiral Yamamoto.

It was not even a remote idea to somehow capture the Admiral to convict him in a US Court for the attack on Pearl Harbor. Such an idea was totally unrealistic. A marshal would have  a difficult time serving an arrest warrant on the Admiral’s battleship, also surrounded by a well-armed navy.

Moreover, Yamamoto was a brilliant officer who was in charge of the Japanese Navy. His targeted killing historically made sense as a decapitation strike given his skill and popularity within the fleet.

We were also at war. Something that cannot be over looked or understated. Targeting leaders is what armies and navies do to each other.

The same can be said for Bin Ladin.

As for the War on Terror (or Overseas Contingency Operation) the killing of Bin Ladin and other “targeted killing” is based off the Congressional Authorization for Use of Military Force passed shortly after the September 11, 2001 attacks.

There are many pronounced differences differences between the War on Terror and World War II. When battles are fought in shadows by SEALs, special forces and Drones, the successful operations do not make the news. It will likely be years before it is publicly known the secret battles that have taken place since 2001 and two US Presidents.

However, there is a very different view to outright ordering the deaths of “war criminals” or threats against the country. These were best articulated in Justice Jackson’s opening statement at the Nuremberg Trials:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

////

In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war- making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively With the men in whom those forces now precariously survive.

For the complete text, please see transcript available on the University of Missouri-Kansas City, School of Law ”Famous Trials” website.

While a war crimes trial lacks the impressive physical display of power of a SEAL team, the solemnness of the proceedings deters dancing in the streets like victory at a sporting event.

So, did Green Arrow make the right decision in killing Prometheus?

Was killing the villain who caused the deaths of 90,000 justified?

Would capturing Prometheus for trial have been a better example?

Is Justice Jackson’s “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated,“ a goal that can be lived up to (even if only in comics) or simply lofty rhetoric in the face of Realpolitik?

Prometheus was a highly intelligent villain who defeated the Justice League in minutes. Supergirl down in one shot. Other heroes maimed. The villain’s powers favor it would be safer to kill instead of capture.

However, Green Arrow was acting solely on his own, not under orders from a President or at least the color of authority from a Congressional Resolution authorizing force (Congress would likely pass a force bill similar to combating the Barbary Pirates or War on Terror, given 90,000 people were killed. Special Forces would likely have orders to shoot to kill if they could find Prometheus).

It appears the threat of Prometheus justified killing over capture, because there are some forms of justice beyond the jurisdiction of any court, especially where the capture is simply not an option because of the level of the villain’s power. However, this was done without any legal authority on Green Arrow’s part.

Worse yet, Green Arrow did not collect or destroy Prometheus’ technology to ensure no one else would get it.

With that said, Green Arrow killed Prometheus “between worlds and dimensions.” There would be an impressive jurisdictional defense on how either Federal or State law applied outside of reality as we know it (jury nullification carried the day in comic).

And that is how a lawyer reads comic books.

Dredd for a future without juries (and instant executions)

Posted on by
Reply

Last week at Comic-Con a trailer was released for a new Dredd movie, unfortunately unrelated to Sylvester Stallone’s 1995 Judge Dredd movie that sees him convicted of murder based on DNA evidence (directed by Danny Cannon, who also got the honor of directing “I Still Know What You Did Last Summer”).

In this new release, Dredd continues to be judge, jury, and executioner rolled into one, and this time he’s training a rookie judge with psychic abilities.  The idea of psychics or truthtellers – individuals able to tell who’s guilty/innocent or telling the truth/lying – is a fun one to play with in the legal context (such as the psychics in Minority Report or the truthtellers in the Dune series) and one I’ll have to discuss in another blog post.

This post, however, is dedicated to the idea of judge and jury being combined into one individual.  It’s significant that Judge Dredd is a British creation, where the right to a jury trial was included in the Magna Carta in 1215.  While the English legal system traveled to the American colonies, the British government didn’t always allow jury trials in the colonies.  That meant that the colonial judges, whose job security depended on the King, were often seen as biased.  Being deprived of jury trials was listed in the Declaration of Independence as one of the complaints levied at the King, right after taxation without consent.  The right to a jury trial was then enshrined in the Constitution.  Alexander Hamilton called this right “the very palladium of free government.”

In the comic strip and movies, Judge Dredd’s entire face is never shown.  While this began as an unofficial guideline, it soon became a rule because “It sums up the facelessness of justice − justice has no soul.”  Contrast that idea of a faceless, soulless judge with our legal system’s view of the jury’s role, which has been described by the Supreme Court as a “guard against the exercise of arbitrary power.”  Taylor v. Louisiana,  419 U.S. 522, 530 (1975).  Juries can also enforce community standards, legitimize laws, and practice jury nullification (in which a jury refuses to convict a guilty defendant because it believes the law to be unfair either generally or in a particular case, such as when jurors refused to find people guilty for assisting slaves to escape their owners).

Of course, juries aren’t perfect.  Jury decisions can often be very unpredictable and biases (such as racism and sexism) can intrude.  Evidentiary issues are also heightened in jury trials.  A friend of mine in law school was an Israeli prosecutor (Israel is noted for not having juries of any kind despite having a legal system based largely on the British legal system), and she often mocked the time we spend on evidentiary issues because of our concern that the probative value of evidence not be outweighed by any prejudice it would cause to a jury.

Nevertheless, juries – even with their flaws – continue to exist to counter the faceless, arbitrary, government-controlled justice represented by Judge Dredd.  And Judge Dredd is apparently only equipped to handle criminal cases.  It would be entertaining but difficult to picture Judge Dredd acting as instant judge and jury in a patent infringement or breach of contract case.  And imagine Judge Dredd trying to sift through millions of bytes of electronic discovery (I think I’ve got the plot for the next Dredd movie).

Of course, the idea of a Judge Dredd — a one-stop shop for all things justice — is appealing when you’re dealing with a bleak future where criminals run rampant and fashion choices are bizarre (plus, what lawyer doesn’t want to yell “I am the Law!” at some point in their career?).  But, as is often the case in the legal system, the most efficient solution isn’t the most effective solution.  If it were my butt on the line, I’d ask that my justice be deliberate and taken out of the hands of just one person. Mistakes happen all the time, even with pyschics and lie detector tests (just ask Tom Cruise or George Costanza), so I don’t want a judge – I want a jury there to take into account extra-legal considerations and, just in case, I’d like some time for review before I meet my executioner.  Just ask Stallone – turns out even Judge Dredd’s system wasn’t perfect!