Somin in NY Times: On Superheroes and the Law

Professor Ilya Somin, a constitutional law scholar, commented in a New York Times article about a new blog that gives superheroes their day in court.

Entitled "Law and the Multiverse: Superheroes, supervillains, and the law," the blog is the result of a creative collaboration between lawyers James Daily and Ryan Davidson in which the two consider questions such as, "Is Superman's heat vision a weapon? If so, would the Second Amendment protect his right to melt pistols and cook hamburgers with it?" or "What if someone is convicted for murder, and then the victim comes back to life?"

Since its launch, the new blog site has attracted significant online attention, including that of law professors blogging online, such as Somin, who himself has seen evidence of interest in these kinds of questions. "I got many more hits on my post on federalism in Star Trek's Federation than I get on my posts about real-world federalism," he says.

Somin points out that while debating legal issues involving superheroes can be a playful exercise, it may also provide a foundation for considering legal issues that may arise in the future. "Over the next several decades we're going to see technology and powers emerge that today only exist in science fiction and comic books," he predicts, citing Arthur C. Clarke's famous saying that "any sufficiently advanced technology is indistinguishable from magic."

"It may be reasonable to ask how should the law treat those kinds of issues when they emerge?" he says.

Blog Gives Superheroes Their Day in Court, The New York Times, December 20, 2010. By John Schwartz.

"The site thus suggests that in the grand Venn diagram of life, there appears to be substantial overlap between lawyers and the people Mr. Daily lovingly refers to as 'comic book nerds.'

“'We look for something that has a good legal hook and a good in-universe hook' and then rev up the cultural blender, Mr. Daily explained. 'We start from the premise that the comic book universe — most comic book universes — seem to be pretty similar to the real world,' with their police and courts and prisons.

"And so Mr. Daily and Mr. Davidson asked whether it was possible to reconcile the imaginary and the real, things like immortal superheroes and estate law. 'To our surprise often it is reconcilable,' Mr. Daily said, whether in modern legal doctrines or centuries-old legal arcana like the British common-law rule against perpetuities and the law of outlawry.

"Other topics include the admissibility of evidence obtained through mind reading by Professor X of the X-men and whether the RICO Act could be effectively used by prosecutors against the Legion of Doom.

"The answers are dry, technical and funny in their earnestness. The Second Amendment, Mr. Daily suggested, would protect many powers, but 'at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’ optic blasts, Havok’s plasma blasts)' that are 'well beyond the power of weapons allowed even by permit.' Those super-duper powers would be tightly regulated, if not banned outright.

"Then there’s this jurisprudential nugget: When Batman, the DC Comics hero, nabs crooks, is the evidence gathered against the bad guys admissible in court? Not if he is working so closely with Commissioner Gordon that his feats fall under the 'state actor' doctrine, in which a person is deemed to be acting on behalf of government and thus is subject to the restrictions on government power. In fact, he might be courting a lawsuit claiming violations of civil rights from those who were nabbed.

“'Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret,' Mr. Daily wrote. 'I’m going to opt for the second explanation.'”

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