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THE LAW IS A ASS for 06/18/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 149
Originally written as installment # 133 and published in Comics Buyer's Guide issue # 749, March 25, 1988 issue
Know one of the nice things about re-doing these columns for the Web page? I get a second bite at the apple for some of the things I find I didn't express as well as I might have the first time around. This week's column is a prime example. One of the answers I made to one of the questions asked did express my opinion; but not as well as it could have.
Now I can say what I should have said back then and look so much wiser.
As long as I don't tell you that's what I'm doing. Spilling the beans like this kind of kills the whole wise-old-owl image.
******
THE LAW IS A ASS
Installment # 149
by
BOB INGERSOLL
This time, as promised, the next installment in my attempt to catch up on the unanswered mail which Don and Maggie gave me at Mid-Ohio-Con: "More Fan Mail >From Some Flounder?" or "Partial Post!"
I know I used the same joke last week, let it slide just this once, okay? I've been at my computer all day. I'm burned out.
First up in the mail package is a missive from Danny Baker from San Fransisco. Danny's letter starts, "Far be it from me, a lowly 1st-year law student at Hastings, to challenge the lofty opinion of a practicing attorney, but..." I knew there was going to be a, "but". That type of statement is always followed by a, "but."
Danny questioned a statement that I made that civil suits are based on a breach of duty and a resulting injury, either physical or economic. He wondered about the tort of trespass, where there is often no physical or economic damage done to the property owner. Danny isn't completely correct, but he does give me a chance to add to that column because, in my rush to finish the column on time, I neglected to include the phrase, "real or imaginary."
Yes, the courts will allow recovery for damages which are imaginary, such as the imagined harm which is done to someone's property rights, simply because another person took a short cut across his front lawn. However, if the damage is imaginary, it will tend to reduce the amount of money you might collect. Courts will also allow recovery for the imaginary harm of emotional distress. One jury even allowed recovery for the imaginary harm of a CAT scan damaging a person's psychic aura, but the judge threw the verdict out, so let's not get carried away, all right?
Danny also wondered about the recent "Stark Wars" storyline in Iron Man. He wondered whether Tony Stark, as Iron Man's employer, would be liable for the damage caused by Iron Man during the war; such as the damage done to a federal prison when Iron Man was trying to get the armor away from the prison's armored guards. Only for the early damage, Danny. That's why Stark "fired" Iron Man, to escape from all that liability.
Of course, the question of liability still isn't settled. Stark, if he survives the storyline without having his secret identity revealed, could always argue that Iron Man was acting on a frolic and gambol of his own and wasn't acting within the scope of his employ. After all, unless Stark happens to be in a federal prison and wants to avoid the infamous soap drop, what does trashing a federal prison have to do with guarding Tony Stark's body?
Also, people could still sue Tony under the theory of negligent entrustment--that is he was negligent in giving someone as unstable as Iron Man must be the armor in the first place and continued to be negligent, when he didn't take it away from Iron Man in the second place. And, as Danny also pointed out in his letter, even after he was "fired," Iron Man still had the armor. Now either Stark let Iron Man keep the armor, which would set him up for a lawsuit from Stark Enterprise shareholders who weren't happy with Stark disposing of a company asset so casually, or Stark didn't permit Iron Man to keep the armor, when he "fired" Iron Man, in which case those same shareholders are going to wonder why Stark isn't bring embezzlement charges against Iron Man in an attempt to recover said company asset. Moreover Stark would have to do those things himself anyway, if he doesn't want people to suspect that Iron Man is actually acting with his blessings.
Frankly, I think this whole story is fascinating. They've dug a big hole for Iron Man, and it will be interesting to see how he gets out of it.
J. K. of Macomb, Illinois (name withheld at my discretion to keep Mr. K's identity a secret) asked me a question about the current copyright law and his potential liability, if he gives other people copies of programs he recorded off the air. J.K. I though a long time about your question. I've gotten other questions like it before. I finally decided, I'm not going to answer it.
Let me explain. I am willing to give advise about a legal question for a comic story someone is writing. I have said so several times in my column and have done so several times in the past. I will do this, because if I make a mistake the only person hurt is some fictional character. But I don't want to get started giving off-hand advice to real life persons about real life problems in a mail order capacity. I don't want to answer such questions without first doing the research necessary to make sure that I get the answer right. Otherwise, I might get it wrong and cause some real life person some bad real life consequences. That's not fair to you. And I don't want to spend the time researching the questions, just so I can give out free advice through the mail. That's not fair to me.
So I'm clarifying my advice policy. Hence forth, I will not give out advice about real life problems through CBG or my column. Any letter I get asking for real life advice will go unanswered.
Kenneth Arromdee of Ventnor, New Jersey wondered if I really meant it, when I said, all speech deserves First Amendment protection. Specifically, he wondered, if I included libel in that category.
Yes, I do include libel in that category, Kenneth. I think all persons should be permitted to say whatever they want in whatever manner is best suited for getting their message to its intended audience. I don't think our government should do anything which prevents an individual from speaking his peace. What happens after he speaks it is a different question.
It's a question of prior restraint versus after-the-fact consequences. I don't think the government should engage in prior restraint and make any type of speech against the law. If the speech in question has some after-the-fact consequences, however, I don't find anything wrong in the speaker being sued or prosecuted for those consequences.
If, for example, the statement is libelous and injurious to another, I don't see anything wrong in the government providing a forum for the injured party to seek redress. Such libel suits come after the statement has been made to correct a wrong, they do not come before the statement is made and prevent it. It's that question of prior restraint to which I'm opposed, not subsequent remedying.
Kenneth asked a series of questions about other matters. He wanted to know if Jim Corrigan could rob a bank and claim he wasn't guilty, because his soul--ie. the Spectre--was out of his body at the time. I doubt it. He might be able to argue that when Spectre isn't in him, he can't recognize right from wrong and so is legally insane, but I don't think soullessness per se is a defense. The courts don't really recognize such metaphysical concepts as souls. In fact, many people argue that neither do judges and lawyers.
Personally, if I were Corrigan, I'd argue that I couldn't have robbed the bank, because I was dead. Go ahead, look it up in the records and tell me I ain't.
Kenneth also wondered whether Corrigan could testify in court, as he lacks a soul so wouldn't feel compelled to obey his oath to tell the truth, "so help him God." Most courts don't require an oath before God as a prerequisite for testifying anymore, as all atheists would be precluded from testifying. All that is required is an affirmation that the witness will affirm to speak the truth so as to avoid the penalties for perjury.
To the best of my knowledge, I never did a column on the trial of Robotman from All-Star Squadron # 17, Ken. I'll consider it for the future. Thanks for the suggestion.
I don't know if Black Canary is legally the first one or the second one. I don't even know if there was a first and second Black Canary in the new, post-Crisis DC universe. (I hope not. I always thought that the idea of an identical daughter possessing all the memories of her mother and believing she was her own mother one of the dumbest, if not kinkiest, ideas in comics.)
Kenneth's asked a real-life question, I am willing to answer, as it does not entail any research and can't get any real person into trouble: does Douglas Adams really own the rights to the characters he created for the Dr. Who episode, "Shadra," which he wrote but was never aired and which he used in his novel Dirk Gently's Holistic Detective Agency? I assume so, otherwise the BBC is going to sue him. Presumably he either retained the rights under English copyright law or bought the rights to the characters back from the BBC. Or obtained permission from the BBC to use them.
Paul Lenoue of Spokane, Washington is writing a comic book series set in East Coast College. It's a series about--never mind, it took Paul ten lines of twelve-point print to tell me what the series is about. Basically, for his story Paul needs to force some certain characters to attend a certain college. He wants to know if there is legal way to force their attendance. I suppose full scholarships would certainly induce their attendance. But force it? I don't know of any way to do that, unless, maybe, some judge were to make attending East Coast College a condition of probation.
Maybe I should rethink my policy about answering questions for stories. The questions are getting downright weird.
Keven Breene of Seattle, Washington wrote in with some laws he felt might be necessary in a world where super-villains really did exist and the existing laws wouldn't cover their actions. For the most part, his suggested laws weren't necessary. The super-villains' actions would be covered by existing laws. For example, Keven suggested a law making it illegal to attempt to destroy the world, because, as Keven put it, "you can't prosecute the Anti-Monitor for warming up an anti-matter cannon." No, but, if Anti-Monitor did destroy the world, think of all the people that would die. I should think that several billion counts of attempted murder--and warming up an anti-matter cannon so that one could destroy the world would constitute several billion counts of attempted murder--should satisfy even the most gung-ho of prosecuting attorneys.
Ronny Richardson of Chamblee, Georgia wondered why I frequently say the number of criminals who actually get off on technicalities is low, when he found a Reader's Digest article which has statistics indicating the number of unsolved murders has risen from ten percent to twenty-eight percent, since the Supreme Court ruled that a suspect had to be read his rights, before the police could question him. Simple. The article's statistics indicate that, now that the police can't use the methods they used to use to coerce confessions--methods which on some occasions included torture and beatings and which sometimes caused innocent persons to confess to crimes they did not commit--they aren't getting as many confessions as they used to get. For that reason, more crimes are going unsolved. My position had nothing to do with how many crimes are solved. My position is that, once the police actually got a confession, statistically few of them are actually thrown out of court by a judge.
See, I got off on a technicality.
Seriously, Ronny, I think a system which prevents the police from beating innocent people until the confess to crimes they didn't commit and then using these tainted confessions to secure unlawful convictions isn't such a bad thing. And the simple fact of the matter is that the incidence of judges throwing evidence out on "technicalities" is very low.
Someone from Detroit, Michigan wrote a letter I couldn't read. Please, if possible type your letters. If not possible, write carefully and legibly. You may have a very interesting question, but, if I can't read it, I'm not going to answer it. I'm funny that way.
Wayne Williams of Richmond, Virginia wanted to know how the Legion of Super-Heroes got around the child labor laws. Simple, the Legion stories take place in 2988. I happen to know that the child labor laws will be repealed in 2619.
Bet you thought I didn't know, huh?
Bob Ingersoll
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