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Join us each Tuesday as Bob Ingersoll analyzes how the law
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THE LAW IS A ASS for 04/17/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 91
Originally written as installment # 80 and published in Comics Buyer's Guide issue # 666, August 22, 1986 issue
There were come some comics and some writers who just made it easy for me. Their stories always left me conflicted. On the one hand, the stories by these writers were frequently not good, so reading them was, at best, a chore. (At worse they made the whole Spider-Clone saga read like a trip through Shakespeare.)
On the other hand, stories by these writers made my job of finding legal mistakes and writing about them much easier. I still haven't decided whether I came out ahead or behind in the trade-off. Back when they could advertise, Winston Cigarettes used to ask, "What do you want: good grammar or good taste?" It's a question that, aside from the fact that it is, itself, composed of bad grammar, posits that the two were mutually exclusive. But at least with the Winstons you got one of the two. If the aforementioned comic writers were to ask, "What do you want: good comics or good law?" I'd have to answer that either one would be a nice change of pace.
******
"The Law is a Ass"
Installment # 91
by
Bob Ingersoll
They're breaking up that old gang of mine.
My old dependables--the bread and butter comics I could always count on for a column, so that I could afford bread and butter--are no longer. They cancelled The Flash and his murder trial, which started before the Cleveland Indians last won the pennant. Now, Doug Moench is leaving Batman and Detective. Either they don't care that I'm paying off my car with column earnings, or they're getting kick backs from the Repo Man.
Anyway, I'm using the Batman stories I have on hand now. Case in point: in Detective Comics # 565, Batman is looking for the location of Roy Spivey. The Batman suspected one Mr. Spivey of axe murdering Mona Lamont. And for good reason; Mr. Spivey did, in fact, part Mona's hair all the way down to her collarbone. So Batman and Catwoman confronted Spivey at his place of employment, but Spivey denied his guilt. (What did they expect? Murderers only confess in court rooms after Perry Mason gets through with them.) Batman wanted to search Spivey's apartment, but didn't know where Spivey lived. (Spivey wasn't only an axe-murderer, he was anti-social. He had an unlisted number.) Batman wondered how he could find out where Spivey lived, as, according to
the "World's Greatest Detective," "Nor can we get his address from his employer, not without probable cause..."
Right! And this year's runaway best seller will be Checking It Twice: Quality Control Secrets of Chernobyl. All I can say is Earth-One must have a strange definition of "greatest," if that's what its foremost detective thinks. If I were to recommend a good refresher course in criminal procedure, do you think he'd go?
Let me explain probable cause. Before a policeman can get an arrest warrant, he must be able to establish that probable cause exists. He has to prove to a judge, that it is more probable than not that a crime has been committed by the person he wants to arrest. If the policeman wants a search warrant, he must prove, that it is more probable than not that the area he wants to search hides either contraband or evidence. Probable cause is what is required, before a policeman can arrest or search. It is not required before a policeman can investigate or ask questions.
Police get probable cause by investigating and asking questions. If they had to have probable cause, before they could investigate or ask the questions, nothing could ever be done. Contrary to popular belief, the Bill of Rights was not a first draft for Catch 22.
The Batman lacked probable cause and couldn't ask for Spivey's address, so instead he followed Spivey home. Wonderful! Let's assume for a moment that Batman needed probable cause to ask for the address, wouldn't if follow that he would also needed probable cause in order to follow Spivey to the same address? (I figure Batman knew he didn't need cause to ask for Spivey's address; he needed an excuse not to find it the easy way, so that he could show off his tracking skills for Catwoman.) Just in case Batman is reading this and doesn't understand yet, you would need probable cause to search Spivey's apartment, but you wouldn't need it to ask Spivey's employer where Spivey lived.
Anyway, Batman watched Spivey's apartment all night, but saw nothing which would help. So the next morning, while Spivey was at work, Batman "tossed" Spivey's apartment. "Toss" is police slang for search someplace, usually without a warrant. Which is what Batman did. Yes, the same man who wouldn't even ask for an address without probable cause later conducted an illegal search without cause and without a warrant. Hey, I don't insist that my heroes be brilliant. Consistency would be nice, however.
Batman didn't find anything, which is just as well. Given that he is still a duly deputized officer of the Gotham City Police, anything he found in his illegal search wouldn't be admissible as evidence anyway. Remember, when I said my heroes didn't have to be brilliant? They don't. But I'd like them to be smarter than your average sump pump.
Because he didn't find anything, Batman staked out Spivey's apartment. Batman watched the same furshlugginer apartment all night every night for a month!
The Joker, in a month-long murder spree, killed everyone who had an "E" in his name. Harvey Dent stole all the two dollar bills in Gotham. The Riddler committed one robbery for every gag in Joe Miller's Joke Book. You don't want to know what the Penguin did. But Batman still watched the same stupid apartment to catch a murderer, that Sugar and Spike could have taken. Oh, to be sure, Batman eventually did catch Spivey, but by that time, did any of us care?
Sump pumps of the world, I apologize. You're not that dumb!
Pity the same lack of stupidity can't be said for this story.
Pity the same lack of stupidity can't be said for Batman Annual # 10.
In the aforementioned Batman Annual # 10, Professor Hugo Strange used several illegal, extortion tactics to force shareholders in the Wayne Foundation to sell out their shares. The resulting panic in the stock market started a run on Wayne Foundation stock. Now, because, according to Wayne Foundation's CEO Lucius Fox, a charity "runs up large debts... and it depends on trust," and, because that trust has vanished in the wake of the stock run, the Wayne Foundation is facing bankruptcy, and not all of Bruce Wayne's assets can pay off the debts. In fact, according to Lucius Fox, Bruce's personal assets have already been seized and auctioned off to satisfy the Wayne Foundation's creditors. Bruce is, in other words, as broke as the foundation.
How can one little plot have so many mistakes in it?
Let's take the concept of the Wayne Foundation running up debts. The Wayne Foundation is a philanthropic foundation. It gives away money in the form of grants and trusts. Such organizations work by taking a large body of money endowed to them by someone looking for a tax dodge and investing it somewhere, where it will receive a large rate of return. From the money earned in that investment the foundation pays for its operating costs and gives out the remainder in grants. A foundation, therefore, shouldn't be running up massive debts. If Lucius Fox has been operating the Wayne Foundation in the red, he's either the most incompetent man alive or guilty of some fancy profit skimming.
Now, before you all write in and say, "Ingersoll, you're a legal expert, you don't know beans about charitable foundations, so don't pretend you do," I want to admit you're right. I don't know beans about charitable foundations. On the other hand, my brother, a professor of business at Yale, does. He has assured me that philanthropic foundations operate as I outlined, and that the financial structure of the Wayne Foundation described in this story isn't worth what a Zamboni scrapes off a skating rink.
But let's pretend it is. Let's pretend that the Wayne Foundation has run up lots of debts, and that people are calling those debts in. Does that mean that Bruce Wayne is personally liable for those debts or that his personal assets could be seized to satisfy them?
No.
The Wayne Foundation is a corporation. Corporations are legal entities and responsible for their own debts. Corporate assets go into the corporate pool, corporate debts are paid out of the same pool. If the pool isn't big enough to pay off the debts, the corporation goes belly up. But the individual shareholders and directors of the corporation, such as Bruce Wayne, are not personally liable for the corporate debts. That's called limited liability and is why corporations are formed; people want to do business, but want to protect their personal wealth from attack for the business' debts. So they form corporations to protect their personal assets, in case the business they want to run goes under.
That one I didn't have to ask my brother. That one I learned in my second year of law school.
But, again, let's pretend that the story is correct and that Bruce Wayne would have been personally liable for the Wayne Foundations debts. There are, after all, ways of "piercing the corporate veil" and attacking the personal assets of the Board of Directors. (It usually involves things like fraud which probably wouldn't apply here, but, for the sake of argument--and my ability to go on with this column--let's pretend that it does apply here.) Does that mean that overnight Wayne Manor could be seized for a forced sheriff's auction to pay off Bruce's debts and that Bruce could be barred from the land?
No.
The Constitution says that no one can be deprived of property without due process of law. That even applies for millionaire playboys. (Actually it especially applies for millionaire playboys, who can buy a lot of influence with campaign contributions.) Before Wayne Manor could be seized to pay off Bruce's debts, there would have to be a judgement of indebtedness imposed in court against Bruce. That is Bruce's creditors would have to sue him, would have to win that suit, and then would have to request that the judge order Bruce's property sold in order to satisfy the judgement. Did you see any of that happen?
And, no, it couldn't have happened off-panel. First, it could not have happened, unless Bruce received proper notice, so that he could defend himself and his assets. The first that Bruce learned of the auction was when Lucius told him Wayne Manor had already been sold. Second, you saw how long the Flash's trial lasted. Your average civil case lasts twice as long as your average criminal case. There is simply no way that all of the necessary legal requirements could have been accomplished within the two-day period in which the story set up.
Not even if the unusually large auction bid were because someone bribed someone else, which is how the story tried to explain the legal impossibilities it created. Yes, some city and court officials take bribes. (I know it's hard to believe, but it happens.) Yes, they play fast and loose with people's rights. (Shocking, I know, but if I don't educate you to the unpleasant and harsh realities of life, I'm not doing right by you.) Still, even if some city or county official took a bribe to force the sell-off of Bruce's assets, said official is not going take a bribe then act in a way which is so obviously wrong, that the only explanation for their behavior is that they've been bribed. Politicians are smarter than sump pumps.
Not to worry, though, Batman triumphed in the end. He defeated Hugo Strange, proved Strange used extortion to force the stock sales, restored the confidence in the Wayne Foundation, stopped his creditors' worries, and regained his fortune. He may have ignored the fact that virtually the same story line just ran in Daredevil, ran a little before that in Iron Man, and ran even before that in Detective with the same villain, Hugo Strange, taking over Bruce Wayne's fortune, but he triumphed.
Well, maybe you don't have to worry. Me, I'm still troubled by one thing. If everyone lost their faith in the Wayne Foundation causing a run on the stock, because three schlubs sold their shares short, how is proving that those schlubs were extorted into selling going to restore confidence in the Wayne Foundation? Any corporation whose financial situation is that precarious isn't going to regain its trust so easily.
Which is fine by me. I put in the new high bid, I move into Wayne Manor tomorrow. I always did want a grandfather's clock.
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