The Law of Superheroes

by James Daily

  1. For example, the intricacies of federal court jurisdiction rarely come up in comic books.

  2. For example, the “entwinement” test set out in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001).

  3. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991). The Lugar state action test was first set forth in Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).

  4. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

  5. Leesville Concrete, 500 U.S. at 621.

  6. Leesville Concrete at 632 (O’Conner, J., dissenting).

  7. U.S. CONST. amend. VI.

  8. The real Twelfth Amendment revised the process by which the President and Vice-President are elected. Which is way less interesting.

  9. The Flash v. 2 #135 (March 1998).

  10. She-Hulk v. 1 #4 (August 2004).

  11. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009). This “prior opportunity” is generally at the witness’s deposition.

  12. Crawford v. Washington, 541 U.S. 36, 52 (2004).

  13. Maryland v. Craig, 497 U.S. 836, 844–45 (1990) (quoting Coy v. Iowa, 487 U.S. 1012, 1021 (1988)).

  14. Craig, 497 U.S. at 860.

  15. Coy v. Iowa, 487 U.S. 1012, 1021 (1988).

  16. Normally, requiring someone to identify him- or herself by giving a name does not trigger the Fifth Amendment. Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177 (2004). (“Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.”) (emphasis added).

  17. Ohio v. Reiner, 532 U.S. 17, 21 (2001).

  18. Id.

  19. Kastigar v. United States, 406 U.S. 441 (1972).

  20. Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).

  21. Doe v. United States, 487 U.S. 201, 210 (1988).

  22. Id. at 210.

  23. Id. This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords. One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive. In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009). Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.

  24. Doe, 487 U.S. at 210 n. 9.

  25. 451 U.S. 454 (1981).

  26. See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 DEV. MENTAL HEALTH L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 TEMP. J. SCI. TECH. & ENVTL. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 AKRON L. REV. 763 (2009).

  27. Although Watchmen was published by DC Comics, it is unrelated to the mainstream DC continuity. This is important because it means that the DC Universe’s legal protections for superheroes (like the “Twelfth Amendment” discussed earlier) do not apply.

  28. U.S. CONST. art. 1 § 8.

  29. U.S. CONST., art. 1, § 8, cl. 1. The spending power is derived from the power to tax. After all, what’s the point of taxing if you can’t spend it?

  30. “The power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. Thus, objectives not thought to be within Article I’s enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.” South Dakota v. Dole, 483 U.S. 203, 207 (1987).

  31. Id. at 206–07.

  32. Id.

  33. U.S. CONST. art. 1, § 8, cl. 3.

  34. See, e.g., United States v. Morrison, 529 US 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).

  35. Gonzales v. Raich, 545 U.S. 1, 16–17 (2005).

  36. Raich. See also Wickard v. Filburn, 317 U.S. 111 (1942).

  37. Raich at 19. 545 U.S.

  38. Id. at 19–20.

  39. See, e.g., Cohen v. California, 403 U.S. 15 (1971) (holding a jacket with a protest slogan to be protected), Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) (holding that wearing a black armband as a form of protest is protected).

  40. Texas v. Johnson, 491 U.S. 397, 404 (1989).

  41. NAACP v. Alabama, 357 U.S. 449 (1958).

  42. Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990).

  43. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

  44. Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 616–617 (1976) (“the Court has consistently recognized a municipality’s power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing”).

  45. Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2004).

  46. Id. at 209.

  47. U.S. CONST., art 1, § 8, cl. 12–14.

  48. See, e.g., Lichter v. U.S., 334 U.S. 742 (1948) (“The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping.”).

  49. CONG. GLOBE, 24th Cong., 1st Sess. 4038 (1836).

  50. United States v. Chandler, 403 F.2d 531 (D.C. Cir. 1968).

  51. United States v. Macintosh, 283 U.S. 605, 623 (1931).

  52. Congress could also decide to draft women as well. The only reason women are not required to register for Selective Service is because Congress has not yet imposed the requirement. There’s no reason it couldn’t.

  53. Macintosh, 283 U.S. at 622.

  54. U.S. CONST., amend. XIV, § 1.

  55. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

  56. Id. at 440–41 (internal citations and quotations omitted).

  57. The Thirteenth and Fourteenth Amendments protect against discrimination on the basis of race or national origin, and the First Amendment protects against religious discrimination. These are the only “suspect clauses” actually in the text of the Constitution.

  58. Sometimes memorably but crassly referred to as “women, aliens, and bastards.”

  59. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).

  60. The Cleburne case is one such example. Romer v. Evans, 517 U.S. 620 (1996) is another.

  61. Although a handful of long-lived mutants have been around for centuries or even millennia (e.g., Apocalypse), most mutants began to appear after the advent of nuclear weapons testing. Mutants have sometimes been referred to as “children of the atom.”

  62. For a discussion of situations in which mutation is actually a drawback, see the discussion of the Americans with Disabilities Act in Chapter 7.

  63. Id. at 442.

  64. Id. at 443.

  65. Id. at 445.

  66. Id. at 445–46.

  67. Id. at 443.

  68. See Lawrence v. Texas, 539 U.S. 558 (2003) (overturning an antisodomy law on the basis of substantive due process rather than the Equal Protection Clause).

  69. U.S. CONST., amend. XIV, § 1.

  70. U.S. CONST., amend. V.

  71. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).

  72. McDonald, 561 U.S. at 24 (Stevens, J., dissenting) (citing United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938)).

  73. Id.

  74. Id.

  75. At the time (i.e., the late 1980s and early 1990s), Genosha served as an allegory for apartheid-era South Africa.

  76. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).

  77. Id. at 487–88.

  78. See R.A.V. v. St. Paul, 505 U.S. 377 (1992) (striking down city ordinance banning the display of symbols such as burning crosses with knowle
dge that it would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender).

  79. Pub. L. No. 103-322, 108 Stat. 2038, codified as amended at 4 U.S.C. §§ 40001–40703.

  80. United States v. Morrison, 529 U.S. 598 (2000).

  81. We realize that the Xavier Institute no longer exists as such, so assume for the sake of argument that mutant rights were established prior to the Messiah Complex storyline.

  82. See Bob Jones Univ. v. United States, 461 U.S. 574 (1983).

  83. Norwood v. Harrison, 413 U.S. 455, 469 (1973).

  84. See 42 U.S.C. § 12187 (exempting private clubs from the Americans with Disabilities Act).

  85. 5 U.S.C. § 2301 (b)(1).

  86. 5 U.S.C. § 2302 (a)(2)(B).

  87. Schick v. Reed, 419 U.S. 256 (1974) (holding that reversing the Presidential pardon which reduced a death sentence to life without parole would be unconstitutional).

  88. See, e.g., Brown v. Plata, 131 S. Ct. 1910 (2011).

  89. See Baze v. Rees, 553 U.S. 35, 48 (2008) (“This Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.”).

  90. Id. at 46.

  91. Id.

  92. Id.

  93. Hope v. Pelzer, 536 U.S. 730, 737–38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

  94. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

  95. Id. at 833.

  96. Id.

  97. “Standing” is essentially having the right status to bring a lawsuit. Under Article III of the Constitution, courts only have jurisdiction over “cases and controversies,” and the Supreme Court has interpreted this to mean that the plaintiff has to have suffered some kind of actual injury. So a person can bring a lawsuit on the basis of injury to himself, but generally lacks “standing” to bring a lawsuit on the basis of injuries to someone else. The injured person has to do it. In this case, the mutant being sentenced would have to bring the lawsuit on his own behalf, so if he consents to the procedure, no one else is going to be sufficiently injured to have “standing.”

  98. Buck v. Bell, 274 U.S. 200 (1927); PAUL A. LOMBARDO, THREE GENERATIONS, NO IMBECILES: EUGENICS, THE SUPREME COURT, AND Buck v. Bell (2008) (documenting the history of compulsory sterilization in the United States); Eugenics Victims to Get Apology, EUGENE REGISTER-GUARD, Nov. 16, 2002, at 2B (noting that sterilizations occurred in Oregon through 1981).

  99. Ewing v. California, 538 U.S. 11, 21 (2003).

  100. Kennedy v. Louisiana, 554 U.S. 407 (2008) (“As it relates to crimes against individuals…the death penalty should not be expanded to instances where the victim’s life was not taken.”).

  101. Hope v. Pelzer, 536 U.S. 730, 737–38 (2002).

  102. 554 U.S. 570 (2008).

  103. 561 U.S. 3025, 130 S. Ct. 3020 (2010).

  104. U.S. CONST., amend. II.

  105. Heller, 554 U.S. at 581.

  106. Id. at 582.

  107. Id. at 584 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (Ginsburg, J., dissenting)).

  108. Id. at 591–96.

  109. Id. at 595 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).

  110. Id. at 625.

  111. Id. at 627.

  112. Not counting the Marvel Earth-311 continuity, in which superpowers appeared in the Elizabethan era. NEIL GAIMAN, MARVEL: 1602 (2006).

  113. 560 U.S. (2010), 130 S.Ct. 1949.

  114. Id.

  115. See, e.g., Reid v. Covert, 354 U.S. 1 (1957).

  116. 10 U.S.C. §§ 331–335. This Act, dating back to 1807, gives the President authority to deploy federal troops on domestic soil to put down rebellion, insurrection, and even unrestricted lawlessness. It’s been on the book for two centuries now, but it’s only rarely invoked. The most recent use was the deployment of federal troops to Los Angeles to control the riots after the Rodney King beating in 1992.

  117. For example, ceding the Panama Canal Zone back to Panama under the Torrijos-Carter Treaty of 1978 and granting independence to the Philippines in 1946.

  118. Texas v. White, 74 U.S. 700 (1868).

  119. See Christina Duffy Burnett, United States: American Expansion and Territorial Deannexation, 72 U. CHI. L. REV. 797 (2005).

  120. 18 U.S.C. § 7 (7).

  CHAPTER 2

  Criminal Law

  Superpowers have rather surprising effects on substantive criminal law. 1 Consider the many questions raised by psychic powers, for example. Psychic supervillain Dr. Psycho was once put on trial for causing a crowd of bystanders to commit murder. This raises two questions: can he be held liable for doing so, and what defense do the bystanders have? Or consider Wonder Woman, who was charged with the murder of Maxwell Lord after killing him in order to stop him from causing Superman to attack his friends. If her case had gone to trial, could she have invoked self-defense or defense of others? More fundamentally, is reading someone’s mind itself a crime? This chapter deals with these kinds of questions.

  While some may think of crimes as a kind of general “doing bad stuff” with particular kinds of bad stuff associated with particular crimes, this will not suffice as a legal analysis. Crimes are carefully and specifically defined as consisting of “elements,” just like molecules are composed of atoms. This careful specification is important because serious ambiguities in the definition of a crime can be interpreted in favor of the defendant, per the rule of lenity. 2 These elements are divisible into two main categories: “actus reus” and “mens rea,” Latin for “guilty act” and “guilty mind,” respectively. These are basically the same as “act” and “intent.”

  The act element is probably the one that most people identify with intuitively. Murder involves killing, theft involves taking other people’s stuff, etc. But the level of detail with which criminal acts are defined may come as a surprise. For example, the act element of murder is the “unlawful killing of another.” All three of the main words in that definition are important. For starters, there must be a killing. No murder if the victim isn’t dead. But that killing must be “unlawful,” as there are a number of circumstances under which killing is legally justified. 3 The most obvious example is killing in self-defense, but we can also include soldiers killing in wartime or police officers killing a fleeing violent felon. Lastly, the killing must be “of another.” Suicide may be morally problematic, and it’s even a crime in some jurisdictions, but it isn’t murder because it doesn’t fit the definition. Implied in the “of another” element is that the victim must be a person. 4 Slaughtering pigs isn’t murder, and the legal system is pretty resistant to classifying people as anything other than human.

  On the other hand, the intent element is not something that most people immediately think of when discussing criminal law, but it is intuitive enough that most people will recognize its validity almost right away. People recognize a difference between doing something on purpose and doing something accidentally. As the great American jurist Oliver Wendell Holmes put it, “Even a dog distinguishes between being stumbled over and being kicked.” 5 The law generally recognizes five different “levels” of intent: intentional/purposeful, knowledgeable, reckless, negligent, and strict liability. 6 “Purposeful” actions are done with the “conscious object” that the act be accomplished and the consequences occur. “Knowledgeable” actions are done with the knowledge that a particular result is a practical certainty, but they are not specifically intended by the actor. “Reckless” acts are done with conscious disregard of known risks in a way that a normal, law-abiding person would not have done. “Negligent” acts are those that involve a risk that a reasonable person should have perceived but did not actually perceive. Lastly, there are some crimes for which there is no intent element at all, i.e., liability is “strict.” For instance, it doesn’t matter wh
ether or not you meant to speed, if you did it, you’re guilty.

  With those definitions out of the way, we can explore how throwing superpowers into the mix does odd and sometimes unexpected things to the elements of particular crimes.

  Actus Reus

  There are a number of different crimes whose actus reus might be affected by superpowers.

  Ra’s al Ghul has a nasty habit of coming back from the dead, even more so than most comic book villains. Grant Morrison et al., THE RESURRECTION OF RA’S AL GHUL (2008).

  Murder

  Let’s start with the big one: murder. As discussed, murder requires that someone die. But what if the dead don’t stay dead? Take Ra’s al Ghul. In DC’s 2007–08 The Resurrection of Ra’s al Ghul event, Ra’s, having been killed by his daughter Nyssa some years prior, is returned to life by a “Fountain of Essence,” similar in function to the Lazarus Pits that Ra’s had used to keep himself alive for centuries. In this particular story, killing Ra’s does not seem to have been a crime, but what if the circumstances had been different? What if it was Batman who was killed and brought back to life while his killer sat languishing in Arkham Asylum? In short, does the subsequent resurrection of a murder victim undermine the validity of the original conviction?

  With one minor caveat, the answer is “almost certainly not.” The caveat is that we need to be talking about actual, honest-to-goodness resurrection, not one of the myriad ways that comic book writers use to explain why a particular character wasn’t really dead. “I got better!” may be a decent hand-wave reason for bringing a beloved (or hated!) character back into the story, but if it turns out that the victim was never actually dead, then any convictions related to their death will need to be overturned. The law already knows how to deal with that one, as someone seeming to be dead but coming back later is an uncommon but understood phenomenon. While there are no criminal cases on point, there have been a number of civil cases in which someone faked his or her own death for insurance purposes then reappeared some years later. 7