by James Daily
•20 Pa.C.S. § 5703 requires that if a person is declared dead in whole or in part on the basis of his continued absence, no property can be distributed out of his estate without the distributee posting a bond for the value of the property. Clearly, a superhero who fears that he may erroneously be declared dead at some point should consider moving to Philadelphia.
•New York doesn’t seem to have a statute on this subject at all, meaning that any property distributed because a person is presumed to have died could be pretty difficult to get back.
So this really becomes a question of the state’s law where our supposedly deceased character’s will or estate would be probated. A returning or resurrected character could find that they get back most of the property they lost, or they could wind up with nothing. The longer they take to come back, the more likely the second outcome is.
But what if the person really was dead? Like really, honestly, no-foolin’, dead dead. Like Ben Grimm in Fantastic Four #508. 24 While in Latveria in the aftermath of Dr. Doom’s exile to hell, Doom started to possess Grimm, and the only way to prevent that was to kill Grimm. Which is what happened. Obviously, Grimm came back from that, but he didn’t “get better.” Richards didn’t clone him back to life. Grimm’s soul hadn’t been hiding out in a convenient contraption Dr. Doom had left lying around. No, Grimm was dead for reals, to the point that the rest of the Fantastic Four had to travel to heaven to try to persuade God himself to return Grimm to life.
The rest of the team was, of course, successful in pleading Grimm’s case. The question is whether it makes a difference to the legal system whether Grimm was simply presumed dead in error or actually dead and then returned to life. The answer is, probably not. This is almost certainly a place where a judge would go with pragmatic analysis. The alternative is to insist that Grimm had actually died and that his resurrection, while restoring him to life, did not restore him to any of the legal positions he had previously occupied. Essentially, the day of his resurrection would be his new “birthday,” and he’d have to reestablish his entire legal persona. This would be an enormous pain in the neck for everyone involved, and since there really doesn’t seem to be any good reason for going that direction, a judge faced with the question would almost certainly treat Grimm as if he hadn’t died in the first place. 25
Still, resurrection would likely have two important differences from simply being gone for a while. First, if one had never died in the first place, one’s legal duties during that time would continue. So if, for example, a character had child support obligations, or owed taxes on interest income, or had a contract duty to fulfill, the character’s absence might not exempt them from these obligations. Any exemption would have to come from a case-by-case analysis. But a character that was truly dead and subsequently resurrected would probably be entitled to a get-out-of-jail-free card for any obligations during the period in which he was dead.
Second, any time a person dies or is presumed dead, their estate is potentially subject to estate taxes. Estate tax is pretty complicated, and it’s the reason there’s an estate planning industry. The tax is somewhat controversial, but be that as it may, as of 2011, any estate worth more than five million dollars will pay something like 35 percent of the amount over five million dollars to the federal government. This is lower than it has been in years past (in 2001 it was 55 percent of everything over $675,000), but still significant for the very rich, which many superheroes and supervillains are.
So when an estate is probated, estate tax will have to be figured out and, if necessary, paid. The question then becomes whether a person who shows up after taxes have been paid on their estate can get those taxes back. If the person had simply been missing and not actually died, the answer may well be yes, though there is not currently case law to support that proposition. The government can be pretty stingy about that stuff. But there is certainly a good argument to be made that if the estate shouldn’t have been probated in the first place, taxes shouldn’t have been paid, so the person is entitled to a refund. But if the person had really, truly died…Like murder, where resurrection does not change the fact that the elements of the crime have been established, the fact that a person is resurrected does not change the fact that they died, which triggers estate tax obligations. Now the IRS could choose to be generous here, but the way the law is written, there is no strictly legal reason why a resurrected person whose estate had paid estate taxes would be entitled to a refund. So Ben Grimm would have a whole mess to deal with once he conquered death and returned to the land of the living.
1. Neil Gaiman et al., Men of Good Fortune, in SANDMAN (VOL. 2) 13 (DC Comics February 1990).
2. Psalms 90:10 (King James).
3. In the actual short story, the fact that Jekyll and Hyde are the same person is the twist ending, not known from the start, which really gives the problems of alter egos a pretty thorough going-over.
4. 18 U.S.C. §§ 1015, 1028, 1621.
5. These regulations are part of the Bank Secrecy Act in the US. Many other countries have similar laws.
6. 18 U.S.C. § 1956.
7. From The New Batman Adventures episode “Joker’s Millions,” based on David Vern et al., The Joker’s Millions, in DETECTIVE COMICS 180 (DC Comics February 1952).
8. Some stories make a distinction between “true” immortality and simply living a really long time. While this distinction may be important for various plots, the legal significance is minimal: anyone who lives more than about a hundred years without aging normally is going to run into these issues.
9. Marvel actually did a seven-issue series starting in January 1977.
10. The term “fee” derives from “fief,” a feudal landholding. It effectively means “interest in land,” but because that’s cumbersome, the “fee” terminology has survived.
11. Which is actually one of the big problems with mortgage securitization and the recent financial crisis. Property ownership can get so tangled that it’s becoming almost impossible to get good title to some houses. We’ll be sorting out that mess for years.
12. The technical estate would be a “fee simple subject to an executory limitation,” a type of “defeasible fee.”
13. And really, if one is acquiring property over a period of centuries, losing track of a few parcels doesn’t seem impossible.
14. Someone like Apocalypse doesn’t really “hide in the shadows,” but neither does he try to amass legitimate wealth.
15. Taxes are discussed in more detail in chapter 8.
16. At the time of this writing the employee contribution was reduced by 2 percent, but this reduction is expected to expire eventually.
17. See chapter 8 for the full story.
18. It also may help explain why the Japanese life expectancy is so high; maybe they simply aren’t recording the deaths. But that’s neither here nor there.
19. For example, Colossus sacrificed himself in UNCANNY X-MEN #390, his body was cremated, and his ashes were scattered. Nonetheless, he was returned to life three years later in ASTONISHING X-MEN #4.
20. NY CLS EPTL § 2-1.7.
21. See, e.g., 20 Pa. Cons. Stat. § 5701(c).
22. The insurer never actually believed that Burney was dead, but chose to settle the claim rather than fight. The judge reasoned that the insurer had figured the likelihood of Burney’s actually being alive into the settlement offer.
23. Id. at 1022.
24. Mark Waid et al., Authoritative Action Part 6, in FANTASTIC FOUR 508 (Marvel Comics February 2004).
25. This creates the interesting result that for criminal law purposes, a person could be held to have died and come back, while this would be ignored for estate law purposes. This may seem weird, but there is consistency here: in both cases, the law is being interpreted in the light most favorable to the “deceased.” While admittedly a bizarre result, it does seem to be the one most consistent with concepts of equity, which is something courts care about.
CHAPTER 13
Non-Human Intelli
gences
One of the most common features of speculative fiction in general is the existence of non-human intelligences. Comic books are no exception. The DC Universe has Superman and various other Kryptonians as well as Gorilla Grodd and other intelligent non-human animals. Marvel has described entire galactic empires, including the Shi’ar and Skrull. Both universes include intelligent machines of various kinds.
Exactly how the law would treat them is a big question, and as there is currently no law on the books that would directly answer this question, finding an answer is going to involve at least as much philosophy and history as it will law, and that’s where we begin.
The Evolution of Animal Rights
The American legal system is a common law jurisdiction. This means that it uses precedent, i.e., court decisions, to create law in addition to laws made by the legislature and regulations made by the executive branch. Common law legal systems are based on tradition as much as anything else, and our tradition comes from the English legal system. Most if not all American states incorporate the English common law, at least insofar as it is compatible with the federal and state constitution and laws. 1 This is relevant here because “under the early common law animals were possessed of no inherent right to protection from the brutality or wanton abuse of man.” 2 Laws regarding animal cruelty, the protection of endangered species, the prevention of disease and overpopulation, and all other kinds of animal rights are the product of statutes, which mostly have their origin in the twentieth century. Thus, when we discuss the rights of intelligent non-humans, we must start with the assumption that they have no inherent rights under the United States legal system except those explicitly granted by statute. So what rights do they have?
A Brief Overview of Animal Rights Law
There are two major animal rights laws (or categories of law) that might apply to intelligent non-humans: state animal cruelty laws and the federal Endangered Species Act. There are many other laws, both state and federal, but they are either limited to particular species or aren’t really the kind of law we’re concerned with here. 3 At the state level, animal cruelty laws vary significantly in scope. For example, California’s statute encompasses “every dumb creature,” which the California courts have held means “all animals except human beings.” 4 Some statutes are a little narrower, however. For example, Missouri’s only applies to “every living vertebrate except a human being,” and some states, such as Arkansas, go one step further and also exempt fish. 5 This means that in some states intelligent non-humans would only qualify for protection if they were vertebrates. This would create problems for some superheroes. It’s not known, for instance, whether the Martian Manhunter has a vertebral column and is thus a vertebrate. Likewise, any insectoid alien would run into immediate problems.
And just what counts as cruelty? California’s statute is typical. For our purposes, this is the main provision: “[E]very person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense.” 6 From the standpoint of an intelligent non-human, this is pretty minimal protection, but at least it’s something. For example, it would cover Lex Luthor’s reckless experimentation on Superman in the rebooted Action Comics #2.
Lex Luthor tortures Superman: aggravated assault or animal abuse? Grant Morrison et al., Superman in Chains, in ACTION COMICS (VOL. 2) 2 (DC Comics December 2011).
So that’s the state law situation. Could the Endangered Species Act fill in any gaps? Among other things, the Endangered Species Act prohibits the taking, attempted taking, importation, possession, sale, and transport of a listed species. 7 “Taking” is defined “in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” 8 The Act also empowers the Secretary of the Interior to create specific regulations for the protection of listed species, including the designation of critical habitat. 9 There are five factors that the Secretary may consider when deciding whether to list a species as endangered, two of which are particularly relevant to intelligent non-humans: “the inadequacy of existing regulatory mechanisms” and “other natural or manmade factors affecting its continued existence.” 10 As we’ve already seen, there aren’t a lot of existing regulatory mechanisms for intelligent animals or extraterrestrials, and it’s likely that their existence could be threatened by natural or manmade factors.
Thus, the Endangered Species Act provides a flexible way for the federal government to grant protection to particular species of intelligent non-humans. It has the benefit of being nationwide and also broader in scope than many state animal cruelty laws. On the other hand, its protections are not automatic, unlike those state laws. But both of these kinds of laws have significant shortcomings. While they provide protection against harm, they do not grant legal personhood. That means no constitutional rights such as free speech and equal protection, no right to own property, and no right to sue for redress. 11 The intelligent non-humans would still be legally dependent upon humans for their protection.
So What About Other Rights?
Although granting significant rights to animals is constitutionally permissible, doing so will likely require a clear signal of intent from Congress. 12 And while some of the strongest supports of animal rights have argued that it is within the power of the courts to grant civil rights to animals, most scholars recognize that the Constitution and laws as they presently exist simply do not contemplate including non-human animals—even intelligent ones—within the definition of “person.” 13
Rights and Responsibilities
Rights often, but not necessarily, come with responsibilities. Consider children: they have many rights and legal protections, but they have a reduced potential for criminal and civil liability. Any attempt to grant significant rights to intelligent non-humans also has to consider what legal responsibilities to place on them. In the case of great apes, animal rights supporters do not argue that they should be liable for crimes. But in the case of the hyper-intelligent apes of Gorilla City—including the supervillain Gorilla Grodd—rights would likely come with responsibilities when interacting with human society.
Artificial Intelligence
So far we have considered intelligent non-human animals, including aliens. But what about artificial intelligences (AIs) like Brainiac, Awesome Andy, Ultron, or the Vision? The nature of computer programs means that granting rights to AIs poses unique legal challenges, some of which have been addressed by legal scholars. 14 We will note a few challenges of our own: if an AI is a legal person, then is deleting it tantamount to murder? What about simply turning it off? If so, what about unwanted copying? For example, if an AI is copied onto another computer against the computer owner’s wishes, is the owner nonetheless required to maintain the computer in perpetuity? What if an AI spreads itself like a virus? Suffice to say that granting AIs rights would open an enormous legal can of worms. But what if artificial intelligences don’t have legal rights? What’s the status quo?
Right now, both the benefits and liabilities of an artificial intelligence flow to its owner or creator, which may be a human or a corporation. For example, on the benefit side, intellectual property produced by a robot (or a computer program) is the property of the robot’s owner. 15 On the liability side, an autonomous robot’s owner may be liable for harm caused by the robot, unless the owner can pin the blame on the manufacturer.
At least on the intellectual property side, however, some have argued that non-human creators should be able to own the copyright in their creative works, at least under certain theoretical circumstances. 16 Presumably the same argument would apply to patentable inventions as well. This would allow Ultron, an android that in turn created another android, the Vision, to apply for patents on any technologies it invented in the process.
However, it remains an open question whether allowing a computer to own intellectual property would necessarily endow it
with all the other rights that people enjoy. Some scholars have argued that a limited right of intellectual property ownership can be achieved without fundamentally altering the legal landscape. 17 As computers become increasingly sophisticated one thing seems certain: of all of the outlandish legal issues in this book, these are probably the ones most likely to come up in the real world.
1. In some states the English common law is incorporated up to the time of the Revolution. See, e.g., N.Y. CONST. § 14 (adopting the common law as it existed in New York up to April 20, 1775). Other states, following a pattern established by Virginia, use the fourth year of the reign of James I (i.e., 1607) as the cutoff. See, e.g., 5 ILL. COMP. STAT. 50/1; MO. REV. STAT. § 1.010. The significance of that year is that it marked the founding of Jamestown, the first successful, permanent English colony in what is now the United States. At that point, the common laws of England and the United States began to diverge. Com. v. Morris, 281 Va. 70, 82 (2011).
2. See, e.g., Regalado v. United States, 572 A.2d 416, 420 n. 7 (D.C. 1990).
3. For examples of the former, see state laws mandating rabies vaccinations for dogs, the federal Marine Mammal Protection Act, and the federal Animal Welfare Act, which is limited to “warm-blooded animal[s]…used…for research, testing, experimentation, or exhibition purposes, or as a pet.” 7 U.S.C. § 2132(g). For an example of the latter, see the federal law criminalizing the creation, sale, and possession of depictions of animal cruelty. 18 U.S.C. § 48.
4. People v. Baniqued, 85 Cal. App. 4th 13, 20–21 (Cal. Ct. App. 2000).
5. MO. REV. STAT. 578.005; ARK. CODE § 5-62-102(2).
6. CAL. PENAL CODE § 597.